Family Law (West's Encyclopedia of American 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.
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...
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Family Law (Great American Court Cases)
The family is one of the most common and oldest human social institutions. It is believed to originate from the child's need for care and the mother's ability to nurse. Family in Western society derived from ancient traditions, such as the Hebrews of the Middle East, where the father was considered the most powerful member. In the United States, family normally refers to a group of kin-related individuals sharing a home. On average, traditional families in America consist of a husband, wife, and one or two children. There is a general conception of families as entities separate from society, in which issues are solved internally. But families and society are integrally intertwined. Consequently, family law evolved as a means to maintain order in society. Family law is a general term traditionally addressing marriage, divorce, domestic disputes, and paternity. It developed from common law and is handled primarily at the state level. The courts and state legislatures have acted throughout time to preserve the institution of marriage due to its moral influence on the population. Though the First Amendment has been interpreted as significantly limiting the extent to which the state can interfere with parents over how they raise their children, certain exceptions are recognized when the health and safety of children are jeopardized.
Origins of Family Law...
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Family Law (Supreme Court Drama)
"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 (1939945) "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.
Adoption (Encyclopedia of Everyday Law)
The decision to adopt a child can be one of the most rewarding that an individual or couple can make. As with any rewarding decision, it can be extraordinarily complex. Those who wish to adopt a child must be willing not merely to welcome a new life into their hearts; they must also be willing to deal with legal and bureaucratic issues that can easily take as long as a typical pregnancy. The key to adopting successfully is to do one's homework: finding reputable attorneys and agencies, knowing the pros and cons of different types of adoptions, and understanding the need to be actively involved at every step without allowing impatience or frustration to take control.
People adopt for a variety of reasons. Many adoptive parents cannot have children. Others want to provide a loving environment for children in need of a home; many parents who adopt have already given birth to children. Some people choose to adopt "special needs" children (children with disabilities, for example). The reasons for ADOPTION notwithstanding, the most important requirement for adoptive parents is that they accept adoption as being as irreversible as the birth process.
Beginning in the last decades of the twentieth century, overseas adoptions became increasingly common. More prospective parents turned to Russia, China, and South and Central America for adoption. This trend was spurred on by several factors, the two most important being easier availability and less fear of legal challenges. Domestic adoptions are not subject to widespread legal challenges, but it is not impossible for birth parents or birth relatives to initiate proceedings to revoke an adoption. For these reasons, it is critically important to work with people who are experienced in the adoption process and who understand what makes for a successful adoption.
Types of Adoption
When people talk about adoption they usually mean "unrelated adoption," the adoption of a child who has no blood or marriage ties to the adoptive parent. Often a grandparent or aunt or uncle will adopt a child whose parents have died or who cannot serve in their role as parents. Step-parents often adopt their step-children as a means of creating a stronger emotional and legal bond within the family. These adoptions are generally much easier and less complicated than a typical unrelated adoption.
When individuals or couples choose to adopt, they have several options.
People who wish to adopt a child who is as close to them culturally and physically as possible will often opt for domestic adoptions. A white couple may want to adopt a white baby, a black couple a black baby, and so on. Because there are more minority children available for adoption, prospective parents almost always have a longer wait if they wish to adopt a white child.
Often a prospective parent is unconcerned about the race or ethnicity of the child. Or the parent may actively seek a child of a different race or ethnic group. Multiethnic adoptions (also called transethnic or transracial adoptions) are generally easier when the parents seek a minority child, again, because there are more minority children available for adoption.
Because there are many more children overseas who are waiting to be adopted (in particular, many more who are under one year old), it is often easier for parents to adopt from another country. This action involves extra steps, of course, including dealing with both the U. S. government and the adoptee's government as well. A number of adoption agencies specialize in overseas adoptions.
The costs associated with adoption depend on the type of adoption and the age of the child, among other factors. An agency or other intermediary should be able to give you a detailed breakdown of how much you should expect to pay for the adoption. Agencies are also be able to provide information on sources for funding and possible tax breaks for adoptive parents.
The Adoption Process
Adoption is a complex process, but it follows a fairly predictable sequence of events. The first step for those who are serious about adopting is to contact someone who can provide assistance. Some people try to handle the adoption process themselves. Because the laws are so complex, doing so is illegal in a number of jurisdictions, and the sheer volume of regulations is often more than the average untrained person can handle.
Most people turn to adoption agencies when they decide to adopt a child. Agencies can be public or state-licenced private groups. Some agencies specialize in specific types of adoption, as mentioned above. Agencies place children whose birth parents have voluntarily surrendered their rights to their offspring or whose birth parents have had their parental rights terminated. Because agencies have considerable experience with adoptions, they can often make the process run more smoothly. A number of people, however, turn to "private placement," in which the biological parent or parents place the child directly with the adoptive parents. Often this action involves a third party (typically a lawyer, doctor, or a member of the clergy) who brings the biological and adoptive parents together and who then acts as an intermediary. Private placement is illegal in Connecticut, Delaware, and Massachusetts, and it is strictly regulated in several other states.
The next step after choosing a third party in the adoption is to arrange for a "home study." This is an evaluation of the prospective parent's fitness to raise a child. Not surprisingly, the process is detailed. A prospective parent is interviewed, often by several people. The parent's home is visited, and letters of reference and recommendation are asked for. The prospective parent needs to provide information about his or her physical and emotional health, financial status, employment history, marital history, and so on. The process is by necessity extremely thorough.
If the child has not yet been born, the prospective parent or the intermediary (whether an agency or an individual) selects a pregnant woman who has decided to give up her baby for adoption. If the child has been born, the prospective parent is offered a chance to meet him or her (for domestic adoptions). Obviously, a prospective parent may not be able to meet a child from overseas right away, but pictures and often videotapes of the child are made available. Some agencies do require that the prospective parent visits the country of the child's birth to meet with the child before the process is finalized. Meeting the child is an important turning point in the adoption process because it is the first chance for the parent and child to bond, if only for a brief time.
At this point the goal is to make sure all the legal requirements have been met. Many forms need to be filled out and filed with different courts and government agencies. For domestic adoptions, the child may be placed with the adoptive family for supervision to ensure that the adjustment is smooth before the adoption is finalized. This step depends on the state laws and the courts. Overseas adoptions by necessity cannot require a supervised adjustment period, so usually when the parent makes a second trip it is to take CUSTODY of the child. Before this action can be accomplished, however, the child must be granted U. S. citizenship. This step involves more paperwork but usually does not take long. However, adoptive parents should be prepared to wait just in case, since two government bureaucracies are at work instead of one.
Each state has its own regulations regarding the adoption process, so it is important to learn the laws governing your particular state and also to know that the intermediary you choose has a thorough knowledge of your state's laws and requirements.
Obstacles to the Adoption Process
The adoption process is not thorough simply because bureaucrats like to make people fill out dozens of forms. Adoption is a permanent decision, and each adoption needs to be made ironclad to avoid difficulties later on.
Probably the greatest fear adoptive parents have is that the birth parents will change their minds and petition to get their children back. Although the laws are thorough, sometimes a birth parent will challenge an adoption for any one of a number of reasons. Most states allow birth mothers to revoke or withdraw their consent to give up their children for adoption; in some states this can be done at any time before the adoption has been finalized. By law, birth mothers actually cannot give consent to an adoption until after their babies have been born; Alabama, Hawaii, Washington, and Wisconsin allow prebirth consent in certain circumstances. But there are strict rules regarding consent. A birth parent who has been proved to have deserted the child, for example, has no LEGAL RIGHT to give or revoke consent.
Many adoptees are the children of single women who may not even know the fathers' identity. Sometimes, birth fathers may wish to exercise their rights to claim their children. Unwed, or "putative" fathers can establish certain rights thanks to changes in state laws since the 1970s. That said, a putative father needs to prove that he has actually earned these rights. Putative fathers have to prove their commitment to their children by having signed the birth certificate, provided support for the child, and communicated with him or her, and by having obtained a court order establishing PATERNITY. They should also have submitted their names to a registry of putative fathers in their states. Moreover, in most cases all of these steps need to have been taken before a birth mother has made a petition to the court to give up her child for adoption. Court cases involving putative fathers who tried to revoke adoptions after claiming they knew nothing of their children's births have resulted in many states clarifying their laws. Putative fathers may have the law on their side, but again, only if they can prove they are truly concerned for their children's welfare.
Within pockets of the adoption community the question of whether to allow children of one race or color to be adopted by parents of another race or color is a source of heated controversy. Some people believe that mixed-race adoptions are a good practice because they break down racial, ethnic, and cultural barriers. Others see mixed-race adoptions as a means of diluting the cultural and ethnic heritage of adopted children.
Multiethnic adoption presents a compelling problem for two reasons. One is that, as noted above, there are many more minority children available for adoption (including mixed-race children). The other is that there are many more whites than minorities who are willing to adopt. Insisting on matching race to race can leave many children without available parents to adopt them. For children of mixed ancestry, matching race to race is hardly possible.
Federal law protects parents and children from this dilemma. The Multi-Ethnic Protection Act (MEPA) of 1994 states that no adoption agencies that receive federal funds can deny or delay a placement based on race or ethnicity. Occasionally there are still some court cases that raise the issue, but parents who work with a reputable agency and knowledgeable attorneys should not have to worry.
MEPA does not cover children of American Indian (Native American) ancestry. The Indian Child Welfare Act of 1978 was passed to protect Indian children from being taken away from their families for adoption without parental or tribal consent. This action was apparently not uncommon in years past, and the protection is thus important. Unfortunately, some have read the law to mean that no child with Indian ancestry can be legally adopted, even with the birth parent's consent, without tribal approval. Complicating the matter is the unclear definition of Indian ancestry; some tribes may consider a person with one drop of Indian blood to be Indian. Clearly there are many layers to this issue, and it requires careful evaluation by the prospective parent with the help of knowledgeable intermediaries.
Open adoption allows the birth family to have visitation rights with the child and the adoptive family. The idea is that maintaining contact with the birth family is beneficial for the child. In some cases it may be, but it can also create uncomfortable situations in which the child ends up being forced to make a choice most children should never have to make. An open adoption can take place only if both the adoptive and birth parents sign an agreement and only if that agreement meets the approval of the court. Different states have different rules about open adoption procedures and also different approaches for addressing whether open adoptions are legally enforceable.
Again, this issue requires careful consideration by prospective parents. In some cases agencies encourage open adoption, but if you wish to adopt a child and open adoption makes you uncomfortable, you should make your concerns known early on.
Searching for Birth Parents
Whether an adopted child may want to know his or her birth parents does not come up at the time of adoption but the question is worth thinking about early on. State laws vary widely on whether adopted children can have access to the names of their biological parents. Often those parents do not want contact with the child. Even if they do, the situation can be problematic for all parties. The issue is not really within the scope of this discussion, but adoption agencies and intermediaries should be able to answer questions about it. Bear in mind that, according to figures form the National Council on Adoption, no more than two percent of adopted adults search for their biological parents.
Probably the best first step is to conduct some research, either through materials available at the public library or over the Internet. There are a number of adoption-related web sites, but keep in mind that not all of them offer the same quality of information. The National Adoption Information Clearinghouse, which is run by the U. S. Department of Health and Human Services' Administration on Children and Families, may be a good starting point. Its web address is http://www.calib.com/naic.
Because each state's laws vary so widely, it is critically important to check with state government agencies that regulate adoption to determine your specific rights and responsibilities.
There are numerous adoption agencies, and it makes sense to get information from several before making a decision on which one would be the best option. Once you choose an agency, you will be working with that group for the next several months, so make sure you are comfortable with your choice.
The Adoption Resource Book. Lois Gilman, HarperPerennial, 1998.
Family Bonds: Adoption and the Politics of Parenting. Elizabeth Bartholet, Houghton Mifflin, 1993.
The Law of Adoption and Surrogate Parenting. Irving J. Sloan, Oceana Publications, 1988.
The Unofficial Guide to Adopting a Child. Andrea Della-Vecchio, IDG Books Worldwide, 2000.
National Council for Adoption (NCFA)
1930 17th Street NW
Washington, DC 20009 USA
Phone: (202) 328-1200
Fax: (202) 332-0935
Primary Contact: Patrick Purtill, Chief Executive Officer
U. S. Department of Health and Human Services, Administration for Children and Families
370 L'Enfant Promenade
Washington, DC 20447 USA
Phone: (202) 401-2337
Primary Contact: Wade F. Horn, Assistant Secretary for Children and Families
Child Abuse/Child Safety/Discipline (Encyclopedia of Everyday Law)
CHILD ABUSE occurs when a parent or caretaker physically, emotionally, or sexually mistreats or neglects a child resulting in the physical, emotional, or sexual harm or exploitation, or imminent risk of harm or exploitation, or in extreme cases the death, of a child. Laws regarding child abuse seek to protect children while at the same time allowing parents the right to raise and discipline their children as they see fit. Controversies over child abuse laws arise when parents or guardians feel that the government is interfering in their private family lives.
Child abuse has a lengthy history. Children have always been subject to abuse by their parents or other adults, and for many centuries laws failed to protect them. Children under English COMMON LAW were considered the property of their fathers until the late 1800s; American colonists in the seventeenth and eighteenth centuries carried this tradition to the early years of the United States.
In the early 1870s, child abuse captured the nation's attention with news that an eight-year-old orphan named Mary Ellen Wilson was suffering daily whippings and beatings at her foster home. With no organization in existence to protect abused children, the orphan's plight fell to attorneys for the American Society for the Prevention of Cruelty to Animals (ASPCA). These attorneys argued that laws protecting animals from abuse should not be greater than laws protecting children. Mary Ellen Wilson's case went before a judge, who convicted the foster mother of ASSAULT AND BATTERY and gave her a one year sentence. More significantly, the orphan's case generated enough outrage over child abuse that in 1874, citizens formed the New York Society for the Prevention of Cruelty to Children.
Child abuse captured the country's attention again in 1962, when an article appearing in the Journal of the American Medical Association described symptoms of child abuse and deemed child abuse to be medically diagnosable. Within ten years, every state had statutes known as mandatory reporting laws. Mandatory reporting laws require certain professionalsoctors and teachers, for exampleo report to police suspected child abuse situations. A 1974 federal law further bolstered efforts to eliminate child abuse by funding programs to help individuals identify and report child abuse and to provide shelter and other protective services to victims.
Defining Child Abuse
Child abuse may involve physical abuse that causes injury. The most obvious types of physical child abuse include children who are beaten, burned, or shaken. Child abuse may involve SEXUAL ABUSE, although sexual abuse need not result in physical injury to the child for it to be illegal. Sexual abuse may include inappropriate touching, fondling, or even sexual intercourse. Finally, child abuse may involve neglect that places a child at risk, such as when a child who is left alone without adult supervision, or a child who is left enclosed and unattended in a car.
Preventing Child Abuse
In addition to state laws criminalizing child abuse, states have agencies, known as child protective services, that investigate suspected child abuse cases involving the child's parent or GUARDIAN. When a suspected case of child abuse involves an adult other than the child's parent or guardian, law enforcement agencies such as police departments typically conduct the investigation. An investigation may include a law officer or case worker visiting and interviewing the child. Parents, guardians, and other possible witnesses such as doctors or teachers also may be questioned during an investigation.
Once an investigation is completed, the child protective service or law enforcement agency determines whether the EVIDENCE substantiates child abuse. If it does, then the agency will intervene. There is a spectrum of intervention modalities. In less severe cases of child abusefor example, when a parent unwittingly leaves a child in a car while making a quick stop in a grocery storeintervention may be nothing more than requiring the parent to meet with a social worker to learn about the dangers of leaving a child unattended. If it appears to the investigating agency that an abused child is in imminent danger, the agency may take the child from the parents and place the child temporarily in a foster home until the parents demonstrate their willingness to stop the abuse. In extreme cases of child abuse, the investigating agency may seek assistance from a court to terminate the parental rights. When this happens, the child may be placed for permanent ADOPTION.
Child protective services, in addition to investigating allegations of child abuse, maintain records regarding child abuse. These records are kept in a central registry, and in some states, parties such as CHILD CARE providers or adoption agencies have access to the central registry. The goal of the central registry is to help child protective services, and sometimes other parties, know whether an individual has a history of abusing children. Although this information can be invaluable in preventing future child abuse, central registries may contain false or unsubstantiated accounts of child abuse, implicating innocent individuals. For this reason, some groups oppose central registries and argue that child protective services have too much power. One such group, Victims of Child Abuse Laws (VOCAL), seeks a reform in child abuse laws to better protect the rights of parents, who may be falsely ACCUSED of child abuse or neglect.
VOCAL, and groups like it, maintain that it is too easy for false accusations about child abuse to lead to the removal of children from their parents and their homes. False reports of child abuse can come from children seeking attention or attempting to avoid reasonable forms of discipline. False reports of child abuse also may result from animosity between parents, such as when parents are in the midst of DIVORCE and CUSTODY battles over their children. The evidence of child abuse is sometimes nothing more than a young child's TESTIMONY. Proponents of child abuse law reform maintain that police and other officials can easily manipulate a young child to support allegations of child abuse. The ramifications of a false report of child abuse can be serious: officials may remove children from their homes and place them in foster care or permanent new adoptive homes, emotionally scarring both children and parents.
Another difficult issue in the arena of child abuse concerns discipline. There are many different views regarding what constitutes discipline and where the line should be drawn between reasonable parental discipline and child abuse. For example, some parents feel that spanking or hitting a child is abusive behavior; other parents rely on spanking, or the threat of a spanking, to teach children to obey and behave. Using physical measures to discipline children is known as corporal punishment. In trying to prevent child abuse, legal and governmental agencies attempt to balance the parents' right to raise their children in the manner they feel is appropriate with the child's right to be safe and unharmed.
Some forms of child abuse are caused not by a parent's willful abuse, but rather, by a parent's NEGLIGENCE. One common, and oftentimes tragic, form of neglect occurs when a parent accidentally leaves a sleeping baby in a car on a warm day. In the sun, the interior of a car can heat within minutes to more than 100 degrees, temperatures that a baby cannot survive. Whether to charge parents in these situations with child abuse is a divisive issue. Some people maintain that careless parents should be prosecuted; other people believe that a parent who loses a child due to the parent's mistake suffers enough without being prosecuted.
ALABAMA: STATUTE defines child abuse as harm or threatened harm of physical abuse, neglect, sexual abuse, sexual exploitation, or emotional/mental injury against a child under the age of 18. Statute contains an exemption for religious reasons for a parent's failure to obtain medical help for the child.
ALASKA: Statute defines child abuse as harm or threatened harm of physical abuse, neglect, sexual abuse, sexual exploitation, or emotional/mental injury of a child under the age of 18. Statute contains an exemption for religious reasons for a parent's failure to obtain medical help for the child.
ARIZONA: Statute defines child abuse as inflicting or allowing physical abuse, neglect, sexual abuse, sexual exploitation, emotional/mental injury, or ABANDONMENT of a child under the age of 18. Statute contains an exemption for Christian Scientists or unavailability of reasonable resources for a parent's failure to obtain medical help for the child.
ARKANSAS: Statute defines child abuse as intentionally, knowingly, or negligently without cause inflicting physical abuse, neglect, sexual abuse, sexual exploitation, abandonment or emotional/mental injury of a child under the age of 18. Statute contains exemptions for poverty or corporal punishment.
CALIFORNIA: Statute defines child abuse as inflicting by non-accidental means physical abuse, neglect, sexual abuse, or sexual exploitation of a child under the age of 18. Statute contains exemptions for religion, reasonable force, and informed medical decision.
COLORADO: Statute prohibits threats to a child's health and welfare due to physical abuse, neglect, sexual abuse, sexual exploitation, emotional/mental injury, or abandonment. Statute contains exemptions for corporal punishment, reasonable force, religious practices, and cultural practices.
CONNECTICUT: Statute prohibits injuries inflicted by non-accidental means involving physical abuse, neglect, sexual abuse, sexual exploitation, emotional/mental injury, or abandonment. Statute contains exemption for Christian Scientists.
DELAWARE: Statute prohibits injuries inflicted by non-accidental means involving physical abuse, neglect, sexual abuse, sexual exploitation, emotional/mental injury, or abandonment. Statute contains exemption for religion.
DISTRICT OF COLUMBIA: Statute prohibits persons from inflicting and requires people to take reasonable care not to inflict injuries involving physical abuse, neglect, sexual abuse, sexual exploitation, or emotional/mental injury. Statute contains exemption for poverty and religion.
FLORIDA: Statute prohibits willful or threatened act that harms or is likely to cause harm of physical abuse, neglect, sexual abuse, sexual exploitation, abandonment, or emotional/mental injury. Statute contains exemptions for religion, poverty, or corporal punishment.
GEORGIA: Statute prohibits injuries inflicted by non-accidental means involving physical abuse, neglect, sexual abuse, or sexual exploitation. Statute contains exemption for religion and corporal punishment.
HAWAII: Statute prohibits acts or omissions resulting in the child being harmed or subject to any reasonably foreseeable, substantial risk of being harmed with physical abuse, neglect, sexual abuse, sexual exploitation, or emotional/mental injury. Statute contains no exemptions.
IDAHO: Statute prohibits conduct or omission resulting in physical abuse, neglect, sexual abuse, sexual exploitation, abandonment, or emotional/mental injury. Statute contains exemption for religion.
ILLINOIS: Statute prohibits persons from inflicting, causing to be inflicted, or allowing to be inflicted, or creating a substantial risk, or committing or allowing to be committed, physical abuse, neglect, sexual abuse, sexual exploitation, or emotional/mental injury. Statute contains exemptions for religion, school attendance, and plan of care.
INDIANA: Statute prohibits act or omission resulting in physical abuse, neglect, sexual abuse, sexual exploitation, abandonment, or emotional/mental injury. Statute contains exemptions for religion, prescription drugs, or corporal punishment.
KENTUCKY: Statute prohibits harm or threat of harm, or infliction or allowance of infliction of physical abuse, neglect, sexual abuse, sexual exploitation, abandonment, or emotional/mental injury. Statute contains exemptions for religion.
MARYLAND: Statute prohibits harm or substantial risk of harm resulting in physical abuse, neglect, sexual abuse, sexual exploitation, or emotional/mental injury. Statute contains no exemptions.
MICHIGAN: Statute prohibits harm or threatened harm of physical abuse, neglect, sexual abuse, sexual exploitation, or emotional/mental injury. Statute contains exemptions for religion.
MISSISSIPPI: Statute prohibits persons from causing or allowing to be caused physical abuse, neglect, sexual abuse, sexual exploitation, or emotional/mental injury. Statute contains exemption for religion and corporal punishment.
NEBRASKA: Statute prohibits knowingly, intentionally, or negligently causing or permitting physical abuse, neglect, sexual abuse, sexual exploitation, or emotional/mental injury. Statute contains no exemptions.
NEW MEXICO: Statute prohibits knowingly, intentionally, or negligently causing or permitting physical abuse, neglect, sexual abuse, sexual exploitation, abandonment, or emotional/mental injury. Statute contains exemption for religion.
NORTH DAKOTA: Statute prohibits serious harm caused by non-accidental means resulting in physical abuse, neglect, sexual abuse, sexual exploitation, abandonment, or emotional/mental injury. Statute contains no exemptions.
OKLAHOMA: Statute prohibits harm or threat of harm resulting in physical abuse, neglect, sexual abuse, sexual exploitation, abandonment, or emotional/mental injury. Statute contains exemptions for religion or corporal punishment.
PENNSYLVANIA: Statute prohibits recent act or failure to act resulting in physical abuse, neglect, sexual abuse, sexual exploitation, or emotional/mental injury. Statute contains exemptions for religion or poverty.
SOUTH DAKOTA: Statute prohibits threat with substantial harm resulting in physical abuse, neglect, sexual abuse, sexual exploitation, abandonment, or emotional/mental injury. Statute contains no exemptions.
TENNESSEE: Statute prohibits persons from committing or allowing to be committed physical abuse, neglect, sexual abuse, sexual exploitation, or emotional/mental injury. Statute contains no exemptions.
UTAH: Statute prohibits harm or threat of harm resulting in physical abuse, neglect, sexual abuse, sexual exploitation, or emotional/mental injury. Statute contains no exemptions.
WASHINGTON: Statute prohibits harm of health, welfare, or safety resulting from physical abuse, neglect, sexual abuse, or sexual exploitation. Statute contains exemptions for Christian Scientists, corporal punishment, or physical DISABILITY.
National Clearinghouse on Child Abuse and Neglect Information. Available at www.calib.com
West's Encyclopedia of American Law. West Group, 1998.
American Professional Society on the Abuse of Children
940 NE 13th Street
Oklahoma City, OK 73104 USA
Phone: (405) 271-8202
Prevent Child Abuse America
200 South Michigan Avenue, 17th Floor
Chicago, IL 60604-2404 USA
Phone: (312) 663-3520
Child Support/Custody (Encyclopedia of Everyday Law)
Historically, fathers had sole rights to CUSTODY. Since custody was connected to INHERITANCE and property laws, mothers had no such rights. Beginning in the late nineteenth century courts began to award custody of young boys and of girls of all ages solely to mothers on the presumption that mothers are inherently better caretakers of young children. Most states followed this maternal preference and mothers almost always received custody. Eventually, many state courts found this preference to be unconstitutional, and gender-neutral custody statutes replaced maternal preference standards in forty-five states by 1990. Today, the custody arrangement is typically part of the DIVORCE DECREE. The decree provides specifics as to where the child will live, how visitation will be handled, and who will provide financial support. Courts consider custody and CHILD SUPPORT issues as subject to change until the child involved reaches the AGE OF MAJORITY. In many divorces physical custody is awarded to the parent with whom the child will live most of the time. Often, the custodial parent shares joint legal custody with the noncustodial parent, meaning that the custodial parent must inform and consult with the noncustodial parent about the child's education, health care, and other concerns. In this situation, courts may order visitation, sometimes called temporary custody, between the child and the noncustodial parent. A clear schedule with dates and times is often incorporated into the decree. Child support is usually paid by the noncustodial parent to the custodial parent. States have formulas to assist judges in determining the appropriate amount of child support.
Some states have a presumption that joint custody is in the best interest of the child, while other states have no provision for it. Advocates of joint custody claim it lessens the feeling of losing a parent that children may experience after a divorce and that it is fair to both parents. However, because of the high degree of cooperation joint custody requires, courts resist ordering it if either of the parents does not want it or if there is EVIDENCE of past DOMESTIC VIOLENCE. Later problems regarding medical or education decisions concerning the child may develop necessitating long and lengthy court proceedings.
Split custody is an arrangement in which the parents divide custody of their children, with each parent being awarded physical custody of one or more children. In general, courts try to avoid split custody because it separates siblings, which is usually not considered to be in the best interest of the child.
Many states have adopted a standard that places primary emphasis on the best interests of the child when custody is disputed. Today, courts exercise their discretion in awarding custody, considering all relevant factors, including marital misconduct, to determine the children's best interests. The court may consider such matters as the wishes of the child's parents; the wishes of the child; the relationship between each parent and the child, and any other person who interacts with the child (including stepparents); the child's adjustment to home, school, community; the mental and physical health of all individuals involved; which parent will foster a positive parent-child relationship between the child and the other parent; who was the primary caretaker; the nature and extent of COERCION, if any, by a parent in obtaining an agreement regarding custody; and whether either parent has complied with an order to attend domestic relations education if the state requires it. Domestic violence is considered not to be in the best interest of a child and in many states a parent's CONVICTION for any domestic violence can weigh heavily against that parent's bid for custody.
In determining child support obligations, courts generally hold that each parent should contribute in accordance with his or her means. Child support is a mutual duty, although the primary caretaker of preschool children may not be required to obtain employment. All states have enacted some form of the Reciprocal Enforcement of Support Act. URESA is a uniform law designed to facilitate the interstate enforcement of support obligations. 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, state laws regarding child support payments have become more severe. State laws can 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.
MEDIATION is a centered resolution process assisted by an IMPARTIAL trained third party to assist the parties in reaching an informed and consensual agreement. Many parents find the process useful in figuring out which custody and visitation arrangement can work best for them and their child. Mediation typically provides a non-adversarial setting in which to resolve the conflicts that arise over financial, parenting, and other issues. It allows the parents to control many aspects of the court process, rather than deferring to a judge. Additionally, parties who are able to reach an agreement in mediation can save significant court costs and attorneys' fees.
State law varies considerably with respect to divorce. States have differing residency requirements, property rules, and spousal support provisions.
ALABAMA: Both parents have an equal right to the custody of their children. Under Alabama law, a court may consider an award of joint custody, whereby the parental rights of both parties remain intact, with one parent as the primary custodian of the children and the other as the secondary custodian. Under this arrangement, both parents remain involved in the decision making responsibilities regarding the children, with each parent having "tie breaking" authority regarding certain issues, such as education, health and dental care, religion, civic and cultural activities, and athletic involvement. Child support is determined under the Alabama Child Support Guidelines, unless the Court finds grounds to deviate from the guidelines. In Alabama, the Department of Human Resources is responsible for enforcing child support obligations. The court retains JURISDICTION to modify child support, up or down, until the children reach the age of 19.
ALASKA: The court determines custody in accordance with the best interests of the child and may consider all relevant factors. Domestic violence may be considered contrary to the best interest of the child. There is no presumption in favor of sole custody or joint custody. Joint custody may be ordered if both parents agree and submit a written parenting plan and such joint custody is in the child's best interest. Child support is based on Flat Percentage of Income model. Support terminates at age 18, or 19 if child is enrolled in high school or the equivalent and is residing with custodial parent. Court may not require either parent to pay for post-majority college tuition.
ARIZONA: There is no presumption in favor of joint custody. Joint custody may be granted if both parents agree, the parents submit a parenting plan, and the order is in the child's best interests. Evidence of domestic violence must be considered contrary to the best interests of the child. In determining the best interests of the child, the court can consider: the wishes of the child's parents; the wishes of the child; the interaction among the child and relatives; the child's adjustment to school, home, and community; the mental and physical health of the parties; which parent is more likely to involve the child in the life of the other parent; if either parent has been the primary care giver; the nature and extent of coercion used by a parent in obtaining a written agreement regarding custody; whether either parent has complied with an order to attend domestic relations education. The non-custodial parent is entitled to reasonable visitation, which shall not be restricted unless the court finds serious endangerment to the child. Child support guidelines are based on Income Shares Model, and award is calculated on GROSS INCOME. Support terminates at age 18, or when the child graduates from high school. The court may not order the parents to pay for the college education costs of the child.
ARKANSAS: The court shall determine custody in accordance with the best interests of the child. Child Support guidelines adopt Varying Percentage of Income Model, basing noncustodial parent's obligation on a percentage of NET income, which percentage decreases as income goes higher. Support terminates at age 18 or when child graduates from high school. Parents cannot be compelled to pay for the college education of their children.
CALIFORNIA: There is no presumption in favor of joint or sole custody; custody shall be awarded to both parents jointly or to either parent AS IS in the best interests of the child. However, where the parties agree to joint custody, then joint custody shall be presumed to be in the best interests of the child. In awarding custody, the court shall consider which parent is more likely to foster a positive relationship between the child and the other parent. An explicit link between custody and child support is made by the provision that a court may order financial compensation to one parent for those periods of time the other parent fails to assume care taking responsibility. There may be additional financial compensation awarded to a parent who has been repeatedly thwarted by the other parent in attempts to exercise custody/visitation. Statewide Uniform Guidelines are an Income Shares model, explicitly taking into consideration the time each parent has custody of the child.
COLORADO: Joint custody, with one parent designated residential custodian, may be awarded when the parties submit a parenting plan. If no plan is submitted, the court shall determine custody in accordance with the best interests of the child. Child Support Guidelines are based on Income Shares model, based on gross income of both parents. Support terminates at age 18 or when child graduates from high school. Parents cannot be compelled to pay for the college education of their children.
CONNECTICUT: If the parents agree to joint custody, then it is presumed that joint custody is in the best interests of the child, and the court must state its reasons for denial of joint custody. The court may award joint legal custody with primary physical custody to one parent. Visitation may be granted to grandparents or any person if it is in the child's best interests. Child Support guidelines are based on the Income Shared Model, taking into consideration the net income of both parents. Child support terminates when the child reaches 18 years of age.
DISTRICT OF COLUMBIA: There is no presumption as to the form of legal custody. The court may order frequent and continuing contact between each party and the child. The court's order shall be based on the best interests of the child. The court can consider the wishes of the parents, the wishes of the child, the interaction and interrelationship among all family members, the mental and physical health of all parties, the capacity of the parties to communicate, the demands of parental employment, the age and number of children, the parents' financial ability to support the custody arrangement and the impact of governmental assistance. Child support guidelines are a hybrid model, sharing aspects of both the income shares and percentage of income model. The award is based on parties' gross incomes, with a self-support reserve for each parent. By STATUTE, a child is entitled to support until age 21.
FLORIDA: The court must order that parental responsibility for a minor child be shared by both parents, unless it is detrimental to the child. The court may grant to one party the ultimate responsibility over specific aspects of the child's welfare. The court shall order sole parental responsibility with or without visitation to the other parent when it is in the best interests of the child. The court may order rotating custody. Child Support Guidelines are the Income Shares Model of support, figured on net income. Health insurance, childcare, and education expenses are added to the basic award. Support terminates at age 18, or 19 if the child will graduate from high school by that time.
GEORGIA: The court may award joint custody and may consider agreements of the parties, if they are in the best interests of the child. The court shall award custody as in the best interests of the child. If a child is 14 years old or older, the child shall have the right to select the parent with whom he desires to live, and such selection shall be controlling unless the parent is not fit. The court may consider family violence in making a decision. Visitation shall be ordered unless there is a history of family violence. Child support is STATUTORY. It is the flat percentage of income model, calculated on gross income, with most extra expenses being a deviation factor.
HAWAII: Custody is determined according to the best interests of the child. If a child is of sufficient age and capacity to reason, so as to form an intelligent preference, the child's wishes can be considered. Joint custody may be awarded in the discretion of the court. Visitation may be awarded to grandparents or any person interested in the welfare of the child. Guidelines set out in court rule follow the Melson Formula. Support is calculated on net income, with allowances for household members.
ILLINOIS: There is no presumption for or against joint custody. Custody is determined based on the best interests of the child, considering the parents' and the child's wishes. Child support guidelines are statutory, based on a flat percentage of income model based on net income.
INDIANA: Joint custody may be awarded if it is in the child's best interests. The relevant factors for determining custody are the parents' and child's wishes, the interaction and relationship of the child with any person who may significantly affect his or her best interests; the mental and physical health of all individuals involved, and a pattern of domestic violence. Child support guidelines are set out in the Indiana Rules of Court. The guidelines are based on the income shares model, based on gross income. Support may include sums necessary for a child's education, including post-majority education.
IOWA: If either party requests joint custody, there is a presumption of joint custody. If the court does not grant joint custody, it must clearly state its reasons why joint custody is not in the best interests of the child. Joint custody does not necessarily require joint physical care. Physical care shall be awarded as is in the best interests of the child. Child support guidelines are enacted by the supreme court of Iowa by court rule. The guidelines are based on the income shares model, based on gross income.
KENTUCKY: The court may grant joint custody to the child's parents if it is in the child's best interests. The court may not consider conduct of a custodian that does not affect his or her relationship to the child, nor may it consider ABANDONMENT of the family residence if it was to avoid physical harm. Child support guidelines set out by statute. The guidelines are based on the income shares model, based on gross income. Support may include sums necessary for a child's education, including post-majority education.
LOUISIANA: The court shall award custody in accordance with the parents' agreement, unless the best interests of the child require otherwise. If there is no agreement or if the agreement is not in the best interests of the child, the court shall award joint custody, unless custody by one parent is shown by clear and convincing evidence to serve the child's best interests. Factors for determining the child's best interests include a stable environment and the primary caretaker preference. The parent not awarded custody is entitled to reasonable visitation. Child support guidelines are statutory. They are based on the Income Shares Model and are based on gross income of the parents.
MARYLAND: The court may award joint custody or sole custody. The court shall deny custody to a party if the court has reasonable grounds to believe that the party abused or neglected the child and that there is a likelihood of further abuse or neglect. Child support guidelines set out by statute. The guidelines are based on the income shares model, based on gross income.
MAINE: When the parties have agreed to shared parental rights and responsibilities, the court shall make such an award absent substantial evidence that it should not be ordered. In making an award of parental rights and responsibilities, the court applies the best interests of the child standard. The court may not apply a preference for one parent over the other on account of either parent's gender or the child's age and gender. The court may order grandparent or third party visitation. Child support guidelines are statutory. They are based on the Income Shares Model, based on gross income.
MASSACHUSETTS: Each parent must submit to the court a shared custody implementation plan. The court may modify or grant the plan. The court may reject the plan and award sole custody to one parent. Child Support Guidelines are provided in the Massachusetts Court Rules, promulgated by the Supreme Judicial Court. The Massachusetts guidelines are a hybrid form of the Percentage of Income model and Income Shares Model. Support is calculated on the gross income of the non-custodial parent, but then offset by a percentage of income of the custodial parent over a certain floor. Support for education of the child is through age 21.
MICHIGAN: Custody is awarded based on the best interests of the child, based on the following factors: moral character and prudence of the parents; physical, emotional, mental, religious and social needs of the child; capability and desire of each parent to meet the child's emotional, educational, and other needs; preference of the child, if the child is of sufficient age and maturity; the love and affection and other emotional ties existing between the child and each parent; the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity; the desire and ability of each parent to allow an open and loving frequent relationship between the child and other parent; the child's adjustment to his/her home, school, and community; the mental and physical health of all parties; permanence of the family unit of the proposed custodial home; any evidence of domestic violence; and other factors. There is a joint custody presumption if the parties agree to joint custody. The court may also award joint custody if one party requests joint custody and the court finds it to be in the best interests of the child. In deciding whether to grant joint custody, the court shall consider all of the above factors plus whether the parents will be able to cooperate; whether the parents have agreed to joint custody. Child support payments are made through the Michigan FRIEND OF THE COURT Bureau. Child support guidelines are contained in the Michigan Friend of Court Child Support Manual. The guidelines are based on the Income Shares Model, calculated on each parent's net income.
MINNESOTA: If both parents request joint custody, there is a presumption that such an arrangement is in the best interests of the child, unless there has been spousal abuse. Sole custody can be awarded based on the best interests of the child. Additional visitation may be ordered for wrongful denial or interference with visitation orders. Child support guidelines are based on the Varying Percentage of Income formula, calculated on net income.
MISSISSIPPI: Custody is determined based on the best interests of the child. Joint custody may be awarded if both parents request joint custody, and if they so request joint custody, there is a presumption that joint custody is in the best interests of the child. The court may order any of the following: Joint physical custody to one or both parents, with legal custody to one or both parents; physical custody to both parents, with legal custody to one parent; physical custody to one parent, with legal custody to both parents; custody to a third party if the parents have abandoned the child or are unfit. Child support guidelines are based on the Flat Percentage of Income model, calculated on net income.
MISSOURI: The court determines custody based on the best interests of the child. Custody can be joint legal, joint physical, sole legal, sole physical, or any combination. An award of joint custody is encouraged. Child support guidelines are based on the Income Shares Formula, calculated on gross income.
MONTANA: Each parent is required to submit, either jointly or separately, a proposed "parenting plan." Sole or joint parenting is awarded based on the best interests of the child. Child support guidelines are set out in the Montana Administrative Rules. The support guidelines are based on the Melson Formula, calculated on net income.
NEBRASKA: The court makes a custody determination based on the best interests of the child, which include the relationship of the child to each parent; the desires and wishes of the child; the general health, welfare, and social behavior of the child; credible evidence of any abuse in the household. Joint custody may be awarded when both parents agree to such an arrangement. Child support guidelines were established by court rule and are contained in the Rules of the Supreme Court. The guidelines are based on the Income Shares Formula and are calculated on net income.
NEVADA: Best interests of the child is the standard. The court awards custody in the following order of preference unless in a particular case the best interest of the child requires otherwise: to both parents jointly or to either parent; to a person or persons in whose home the child has been living and where the child has had a wholesome and stable environment; to any person related within the third degree of consanguinity; to any other person or persons whom the court finds suitable and able to provide proper care. In determining the best interests of the child, the court considers: the wishes of the child if the child is of sufficient age and maturity; any nomination by a parent for a GUARDIAN; whether either parent has engaged in domestic violence. A finding of domestic violence creates a rebuttable presumption that custody would not be appropriate by the PERPETRATOR. Child support guidelines are based on the varying percentage of income model. Support is figured by applying a percentage to the obligor's gross income, which percentage gradually decreases as the income rises.
NEW HAMPSHIRE: Joint legal custody is presumed to be in the best interests of the child, unless the child has been abused by one of the parents. Custody is awarded based on preference of the child, education of the child, findings and recommendations of a neutral mediator, and other factors. Child support amounts are set out by statute. The guidelines are based on the Income shares model figured on net income.
NEW MEXICO: Joint custody is presumed to be in the best interests of the child. The court may award joint or sole custody as in the best interests of the child, upon consideration of five enumerated factors. Child support guidelines are based on the Income Shares Model, calculated on gross income.
NEW JERSEY: Sole or joint custody may be awarded based on the needs of the child. There is no preference for either parent and no preference for joint custody. Child support guidelines are contained in New Jersey Court Rules. The guidelines are based on the Income Shares model figured on net income.
NEW YORK: Joint or sole custody is determined according to the best interests of the child. Neither parent is entitled to a preference. Child support guidelines are based on the Income Shares Model, calculated on net income.
NORTH CAROLINA: Joint or sole CHILD CUSTODY is determined according to the interests and welfare of the child. There is no presumption that either parent is better suited to have custody. The court considers all relevant factors, including acts of domestic violence and the safety of the child. Child support guidelines are based on the Income Shares Model and calculated on gross income.
OHIO: If at least one parent requests shared parenting and files a plan that is in the child's best interests and approved by the court, the court may allocate parental rights and responsibilities of the child to both parents and issue a shared parenting order. Otherwise, the court, consistent with the child's best interests, allocates parental rights and responsibilities primarily to one parent. Child support guidelines are based on the Income Shares Model and is calculated on net income. Termination of child support is at age 18 or graduation from high school, whichever occurs later.
OREGON: The court may order joint custody if the parents agree, but if one parent objects, the court cannot order joint custody. An order for joint custody may specify one home as the primary residence of the child and designate one parent to have sole power to make decisions regarding specific matters while both parents retain equal rights and responsibilities for other matters. When ordering sole custody, the court can consider the conduct, marital status, income, social environment or lifestyle of either party only if it is shown that these factors are causing or may cause damage to the child. Any person who has established emotional ties creating a parent/child relationship with a child may petition for custody, placement, or visitation. The child support guidelines formula is based on the Income Shares Formula, calculated on gross income.
TEXAS: Joint or sole custody is determined according to the best interests of the child. The court considers the best interests of the children deciding upon the terms and conditions of the rights of the parent with visitation. Child support guidelines, by statute, are based on a percentage of income of the noncustodial parent's net income. Support terminates at age 18 or graduation from high school, whichever is later. No statute or CASE LAW requires support for college.
UTAH: The court considers the best interests of the child along with the past conduct and demonstrated moral standards of the parties. There is a presumption that a spouse who has been abandoned is entitled to custody. State law contains advisory guidelines for visitation schedules, broken down by age of the child. Child support guidelines are based on the income shares model, calculated on gross income. Support terminates at age 18 or when the child graduates from high school. In a divorce action, the court may order support to the age of 21.
WEST VIRGINIA: There is a presumption in favor of the parent who has been the primary caretaker of the child. There is no provision for joint custody. Child support guidelines are based on the income shares model, calculated on ADJUSTED GROSS INCOME. Support terminates at age 20, or up to age 20 if the child is still enrolled in secondary school. The court may award support for college tuition.
Joint Custody with a Jerk: Raising a Child with an Uncooperative EX. Ross, Julie, St. Martin's Press, 1996.
Why Did You Have to Get a Divorce? and When Can I Get a Hamster?: A Guide to Parenting through Divorce. Wolf, Anthony E., Farrar, Straus & Giroux, 1998.
American Bar Association
750 N. Lake Shore Dr.
Chicago, IL 60611 USA
Phone: (312) 988-5603
Fax: (312) 988-6800
Cohabitation (Encyclopedia of Everyday Law)
The law has not traditionally looked favorably upon individuals living together outside marriage. However, the law in this area has changed considerably in the past 40 years, and COHABITATION has increased dramatically. In 1970, about 530,000 couples reportedly lived together outside marriage. This number increased to 1.6 million in 1980, 2.9 million in 1990, 4.2 million in 1998, and 5.5 million in 2000.
In some respects, unmarried cohabitation can be beneficial from a legal standpoint. Unmarried partners may define the terms of their relationship without being bound by marriage laws that can restrict the marriage relationship. When a relationship ends, unmarried cohabitants need not follow strict procedures to DISSOLVE the living arrangement. Moreover, unmarried couples can avoid the so-called "marriage tax" in the Internal Revenue Code that provides a greater tax rate for unmarried couples than it does for two unmarried individuals (notwithstanding efforts to eliminate this PENALTY).
On the other hand, unmarried cohabitants do not enjoy the same rights as married individuals, particularly with respect to property acquired during a relationship. Marital property laws do not apply to unmarried couples, even in long-term relationships. Moreover, laws regarding distribution of property of one spouse to another at death do not apply to unmarried couples. Children of unmarried couples have traditionally not been afforded the same rights as children of married couples, though most of these laws have now been revised to avoid unfairness towards offspring.
A fairly recent trend among both heterosexual and homosexual couples who live together is to enter into contracts that provide rights to both parties that are similar to rights enjoyed by married couples. In fact, many FAMILY LAW experts now recommend that unmarried cohabitants enter into such arrangements. Further changes in the laws may also afford greater rights to unmarried partners who live together. However, such arrangements may be invalid in some states, particularly where the contract is based on the sexual relationship of the parties.
Unmarried Cohabitation Compared with Marriage
Family laws related to marriage simply do not apply to unmarried couples. More specifically, marriage creates a legal status between two individuals that gives rise to certain rights to both parties and to the union generally. Unmarried cohabitants do not enjoy this status and do not enjoy many of the rights afforded to married couples. Thus, if a couple is married for two years, and a spouse dies, the other spouse is most likely entitled to receive property, insurance benefits, death benefits, etc., from the other spouse's estate. If an unmarried couple lives together for 20 years, and one partner dies, the other is not guaranteed any property or benefits.
Though many groups support legal reforms providing protection to unmarried cohabitants that would be analogous to laws governing marriage, very few such laws exist today. Unmarried cohabitants need to know what laws do exist in their state and cities and know what their options are regarding contractual agreements that may provide themselves rights that are analogous to marital rights.
Laws prohibiting cohabitation and sexual relations outside marriage were very common until about the1970s. Though most of these laws have been repealed or are no longer enforced, they still exist in some state statutes. Eight states still have laws prohibiting cohabitation, which is usually defined as two individuals living together as husband and wife without being legally married. Nine states prohibit fornication, which is usually defined as consensual sexual intercourse outside marriage. More than 15 states prohibit SODOMY, which includes any "unnatural" sexual activity, such as anal or oral sex. Several of these statutes apply specifically to homosexual activity.
While most of these criminal laws are clearly antiquated, they are sometimes enforced. In the United States Supreme Court case of Bowers v. Hardwick in 1986, the court upheld the enforcement of a criminal STATUTE prohibiting sodomy between two homosexual men. Criminal statutes proscribing private sexual activity do not violate the federal constitution under Bowers, though some state courts have held that similar statutes are unconstitutional under the relevant state constitutions.
Legal Status and Discrimination
A person living as an unmarried cohabitant with another might face some form of DISCRIMINATION. For example, an employer may expressly forbid employees from living together outside marriage and may terminate the employment of an employee who does cohabit with someone else outside marriage. Such discrimination in employment is not generally forbidden, either under federal law or under the laws of most states. Some state cases have, however, upheld the rights of individuals' cohabiting outside wedlock.
Acquisition of Property
Marital and COMMUNITY PROPERTY laws govern the ownership of property acquired during a marriage. The characterization of property acquired by unmarried cohabitants is less clear. Some property acquired by unmarried couples may be owned jointly, but it may be difficult to divide such property when the relationship ends. Similarly, if one partner has debt problems, a CREDITOR may seek to attach property owned jointly by both partners as if the partner owing the debt solely owned the property. Problems such as these are even more complicated if one partner dies without a will, since the surviving partner has no right to the other partner's property unless the property is devised to the surviving partner.
Children born out of wedlock have not traditionally enjoyed the same legal protections as children born in wedlock. Such children were historically referred to as "bastards" in a legal context. Though many restrictions on illegitimate children have been repealed, legitimate (or legitimated) children still enjoy some rights that frustrate illegitimate children. This discrepancy is particularly clear with respect to INHERITANCE. In most states, a child born in wedlock does not need to establish PATERNITY to recover from the father. However, a child born out of wedlock generally must establish paternity before he or she can recover from the father.
State laws have traditionally prevented unmarried couples from adopting children. Though some states have begun permitting unmarried couples to adopt, these couples still face difficulties. Married couples, on the other hand, are permitted to adopt and are usually preferred over unmarried individuals.
Eligibility for Benefits
Recent changes of policy by insurance companies permit unmarried couples to purchase life insurance policies on the life of the other partner or jointly purchase homeowners' insurance on a house owned by both partners. However, an unmarried couple will often have more trouble jointly obtaining automobile insurance covering an automobile owned by both partners. Similarly, unmarried couples continue to face serious problems with respect to health insurance family coverage paid or co-paid by an employer. A recent trend among some states, municipalities, and private employers is to extend benefits to registered "domestic partners."
Recognition of Domestic Partners
Several states and municipalities have adopted a system whereby unmarried cohabitants (heterosexual or homosexual) may register as "domestic partners." Other states and municipalities permit domestic partners to recover benefits. These classifications provide some rights that are analogous to marital rights, though these rights are certainly limited. The greatest benefit in registering as domestic partners is that each partner enjoys insurance coverage, family leave, and retirement benefits similar to married couples, though these rights are considerably more restricted than rights afforded to married couples. However, these rights are not generally recognized outside the JURISDICTION that permits registration of domestic partners.
Common Law Marriages
A minority of states continues to recognize COMMON LAW, or informal, marriages. Such a marriage requires more than mere cohabitation between a man and a woman. The couple generally must agree to enter into a martial arrangement, must cohabit with one another, and must hold themselves out as husband and wife to others. Parties that enter into such marriages enjoy the same rights as couples married in a formal ceremony, including rights related to insurance and other benefits, property distribution on DISSOLUTION of the marriage, and distribution of property upon the death of one spouse.
Proof that the marriage exists is often the most difficult aspect of a common law marriage, and this issue often arises after the relationship has ended either in death or DIVORCE. For example, the question of whether a common law marriage exists may arise after one of the partners in a relationship dies and the other seeks to prove that the partners were informally married to receive property through the other partner's estate. Similarly, when a relationship ends, a partner may seek to prove that an informal marriage exists in order to seek property distribution under marital or community property laws.
Though a minority of states recognizes common law marriages, all states will recognize the validity of a common law marriage if it is recognized in the state where the parties reside, agreed to be married, and hold themselves out as husband and wife. Common law marriages apply only to partners who are members of the opposite sex.
Unmarried cohabitants can provide rights to one another that are analogous to rights granted to married couples by entering into a contract or contracts with one another. The validity of such agreements was the subject of the well-publicized case of Marvin v. Marvin in the California Supreme Court. In this case, the court held that an express or implied agreement between a couple living together outside wedlock to share income in consideration of companionship could be legally enforceable. The majority of states now recognizes these agreements, though many require that the agreement be in writing. Only a small number of recent cases have held that contracts between unmarried cohabitants are unenforceable.
When an agreement expressly includes consideration of sexual services provided by one of the parties, a court is more likely to find the contract unenforceable. For example, if one partner agrees to share his or her income in return for the other partner's love and companionship, a court may find that the contract implicates meretricious sexual activity and refuses to enforce the contract. Proving an oral agreement or an implied contract between unmarried cohabitants is also difficult, and several courts have refused to recognize such an agreement due to lack of proof.
Provisions of Written Cohabitation Agreements
Written cohabitation agreements usually involve financial and property arrangements. Parties can provide arrangements analogous to community or marital property laws or can provide other arrangements that are more favorable to the couple. Parties should consult with a lawyer prior to entering into such an agreement to ensure that the provisions are enforceable.
Wills and Durable Power of Attorney for Health Care
Nothing prevents unmarried cohabitants from leaving estate property to the other partner upon death in a will. Alternatively, INTESTATE SUCCESSION laws may not provide that any of the property will pass from one cohabitant to another, since INTESTACY laws are limited to marital and other family relationships. A fellow cohabitant might be able to get a share of the intestate's estate by arguing that the parties entered into a financial or property-sharing arrangement, though such claims are often difficult to prove. A will is generally the best method to ensure that a partner's property is given to the person he or she designates.
Another complicated situation can arise if one co-habitant is disabled and requires a GUARDIAN. To ensure that one partner is named guardian or is otherwise able to make decisions for the other partner, the parties can prepare a document providing durable POWER OF ATTORNEY to the other partner. Under this arrangement, the person granted durable power of attorney could make healthcare decisions for the disabled person. Similarly, a party can draft a LIVING WILL (also called a healthcare directive) that dictates the wishes of the party regarding life-prolonging treatments.
State and Local Provisions Regarding Cohabitation
Sixteen states recognize common law marriages, though several of these states have repealed their laws and only recognize these marriages entered into prior to a certain date. Several states and municipalities now recognize domestic relations rights, providing a registry, extension of benefits, or both. Unmarried cohabitants should check with the state and local laws in their jurisdictions to determine what rights may be available to them.
ALABAMA: The state recognizes common law marriages. Neither the state nor any municipality in the state provides specific rights to domestic partners.
ALASKA: The state does not recognize common law marriages. Neither the state nor any municipality in the state provides specific rights to domestic partners.
ARIZONA: The state does not recognize common law marriages. The cities of Phoenix and Tucson extend benefits to domestic partners.
ARKANSAS: The state does not recognize common law marriages. Neither the state nor any municipality in the state provides specific rights to domestic partners.
CALIFORNIA: The state does not recognize common law marriages. The following cities and counties extend benefits to domestic partners: Alameda County, Berkeley, Laguna Beach, Los Angeles, Los Angeles County, Marin County, Oakland, Petaluma, Sacramento, San Diego, San Francisco, San Francisco County, San Mateo County, Santa Cruz, Santa Cruz County, Ventura County, West Hollywood. The following cities and counties offer domestic partner registries: Arcata, Berkeley, Cathedral City, Davis, Laguna Beach, Long Beach, Los Angeles, Los Angeles County, Oakland, Palo Alto, Sacramento, San Francisco, Santa Barbara County, and West Hollywood.
COLORADO: The state recognizes common law marriages. The city of Denver extends benefits to domestic partners and provides a domestic partner registry.
CONNECTICUT: The state does not recognize common law marriages. The state extends benefits to domestic partners. The city of Hartford extends benefits to domestic partners and provides a domestic partner registry.
DELAWARE: The state does not recognize common law marriages. Neither the state nor any municipality in the state provides specific rights to domestic partners.
FLORIDA: The state does not recognize common law marriages. Broward County extends benefits to domestic partners and provides a domestic partner registry. The city of West Palm Beach extends benefits to domestic partners.
GEORGIA: The state recognizes common law marriages entered into before January 1, 1997. The city of Atlanta extends benefits to domestic partners and provides a domestic partner registry.
HAWAII: The state does not recognize common law marriages. The state extends benefits to domestic partners and provides a domestic partner registry.
IDAHO: The state recognizes common law marriages enter into before January 1, 1996. Neither the state nor any municipality in the state provides specific rights to domestic partners.
ILLINOIS: The state does not recognize common law marriages. The city of Chicago and Cook County extend benefits to domestic partners. The city of Oak Park extends benefits to domestic partners and provides a domestic partner registry.
INDIANA: The state does not recognize common law marriages. The city of Bloomington extends benefits to domestic partners.
IOWA: The state recognizes common law marriages. The city of Iowa City extends benefits to domestic partners and provides a domestic partner registry.
KANSAS: The state recognizes common law marriages. Neither the state nor any municipality in the state provides specific rights to domestic partners.
KENTUCKY: The state does not recognize common law marriages. Neither the state nor any municipality in the state provides specific rights to domestic partners.
LOUISIANA: The state does not recognize common law marriages. The city of New Orleans extends benefits to domestic partners.
MAINE: The state does not recognize common law marriages. The city of Portland extends benefits to domestic partners and provides a domestic partner registry.
MARYLAND: The state does not recognize common law marriages. The cities of Baltimore and Takoma Park and Montgomery County extend benefits to domestic partners.
MASSACHUSETTS: The state does not recognize common law marriages. The following cities extend benefits to domestic partners: Boston, Brewster, Brookline, Nantucket, Provincetown, and Springfield. The following cities provide domestic partner registries: Boston, Brewster, Brookline, Cambridge, Nantucket, and Northampton.
MICHIGAN: The state does not recognize common law marriages. The cities of Kalamazoo, Washtenaw County, and Wayne County extend benefits to domestic partners. The cities of Ann Arbor and East Lansing extend benefits to domestic partners and provide a domestic partner registry.
MINNESOTA: The state does not recognize common law marriages. The city of Minneapolis extends benefits to domestic partners and provides a domestic partner registry.
MISSISSIPPI: The state does not recognize common law marriages. Neither the state nor any municipality in the state provides specific rights to domestic partners.
MISSOURI: The state does not recognize common law marriages. The city of St. Louis provides a domestic partner registry.
MONTANA: The state recognizes common law marriages. Neither the state nor any municipality in the state provides specific rights to domestic partners.
NEBRASKA: The state does not recognize common law marriages. Neither the state nor any municipality in the state provides specific rights to domestic partners.
NEVADA: The state does not recognize common law marriages. Neither the state nor any municipality in the state provides specific rights to domestic partners.
NEW HAMPSHIRE: The state recognizes common law marriages but only for inheritance purposes. Neither the state nor any municipality in the state provides specific rights to domestic partners.
NEW JERSEY: The state does not recognize common law marriages. The city of Delaware extends benefits to domestic partners.
NEW MEXICO: The state does not recognize common law marriages. The city of Albuquerque extends benefits to domestic partners.
NEW YORK: The state does not recognize common law marriages. The following cities and counties extend benefits to domestic partners: Brighton, Eastchester, Ithaca, New York City, Rochester, and Westchester County. The following cities provide domestic partner registries: Albany, Ithaca, New York City, and Rochester.
NORTH CAROLINA: The state does not recognize common law marriages. The city of Chapel Hill extends benefits to domestic partners and provides a domestic partner registry. The city of Carrboro also provides a domestic partner registry.
NORTH DAKOTA: The state does not recognize common law marriages. Neither the state nor any municipality in the state provides specific rights to domestic partners.
OHIO: The state recognizes common law marriages entered into prior to October 10, 1991. Neither the state nor any municipality in the state provides specific rights to domestic partners.
OKLAHOMA: The state recognizes common law marriages. Neither the state nor any municipality in the state provides specific rights to domestic partners.
OREGON: The state does not recognize common law marriages. The state extends benefits to domestic partners. The city of Portland and Multnomah County extend benefits to domestic partners. The city of Ashland provides a domestic partner registry.
PENNSYLVANIA: The state recognizes common law marriages. The city of Philadelphia extends benefits to domestic partners.
RHODE ISLAND: The state recognizes common law marriages. Neither the state nor any municipality in the state provides specific rights to domestic partners.
SOUTH CAROLINA: The state recognizes common law marriages. Neither the state nor any municipality in the state provides specific rights to domestic partners.
TENNESSEE: The state does not recognize common law marriages. Neither the state nor any municipality in the state provides specific rights to domestic partners.
TEXAS: The state recognizes common law marriages. Travis County extends benefits to domestic partners.
UTAH: The state recognizes common law marriages. Neither the state nor any municipality in the state provides specific rights to domestic partners.
VERMONT: The state is the first to recognize "civil unions," which extends rights to homosexual partners that are similar to rights granted to married couples. The state also extends benefits to domestic partners. The state does not recognize common law marriages.
VIRGINIA: The state does not recognize common law marriages. Arlington County extends benefits to domestic partners.
WASHINGTON: The state does not recognize common law marriages. The state extends benefits to domestic partners. The cities of Olympia and Tumwater and King County extend benefits to domestic partners. The city of Lacey provides a domestic partner registry. The city of Seattle extends benefits to domestic partners and provides a domestic partner registry.
WEST VIRGINIA: The state does not recognize common law marriages. Neither the state nor any municipality in the state provides specific rights to domestic partners.
WISCONSIN: The state does not recognize common law marriages. The city of Madison extends benefits to domestic partners and provides a domestic partner registry. The city of Sherwood Hills Village and Dane County extend benefits to domestic relations. The city of Milwaukee provides a domestic partner registry.
WYOMING: The state does not recognize common law marriages. Neither the state nor any municipality in the state provides specific rights to domestic partners.
Cohabitation: Law, Practice, and Precedent, Second Edition. Wood, Helen, Denzil Lush, and David Bishop, 2001.
Family Law in a Nutshell. Krause, Harry D., West Publishing, 1995.
The Living Together Kit: A Legal Guide to Unmarried Couples, Ninth Edition. Ihara, Toni, Ralph Warner and Frederick Hertz, Nolo Press, 1999.
Understanding Family Law, Second Edition. DeWitt, John, Gregory, Peter N. Swisher, and Sheryl L. Wolf, LexisNexis, 2001.
Unmarried Couples and the Law. Douthwaite, Graham, Allen Smith Company, 1979.
Alternatives to Marriage Project
P.O. Box 991010
Boston, MA 02199 USA
Phone: (781) 793-0296
Fax: (781) 394-6625
American Association for Single People (AASP)
415 E. Harvard Street
Glendale, CA 91205 USA
Phone: (818) 242-5100
Primary Contact: Thomas F. Coleman, Executive Director
Focus on the Family
Colorado Springs, CO 80995 USA
Phone: (719) 531-3328
Fax: (719) 531-3424
Lambda Legal Defense and Education Fund
120 Wall Street, Suite 1500
New York, NY 10005-3904 USA
Phone: (212) 809-8585
Fax: (212) 809-0055
Divorce/Separation/Annulment (Encyclopedia of Everyday Law)
In primitive civilizations marriage and marriage DISSOLUTION were considered private matters which did not require involvement of any authority above the individuals in the relationship. The Romans first placed marriage and DIVORCE under state regulation during the reign of Augustus. When Christianity spread about 300 A.D., governments came under religious control. The Catholic Church did not permit divorce unless one of the parties had not been converted to Christianity prior to marriage, which then made the marriage null and void.
During the early 1500s, the Protestant Reformation began a slow movement in Europe to separate the laws governing marriage from the precinct of the Roman Catholic Church. Henry VIII wanted the Catholic Church to grant him a divorce from Catherine of Aragon because all the male offspring she bore died shortly after birth, and Henry believed he could secure a male HEIR by marrying another woman. When Pope Clement VII refused, Henry took control of Church properties in England and made himself head of the Anglican Church. This separation from the Vatican made divorce possible in England by an act of Parliament. Still, divorce remained rare; when it occurred it was a costly legislative process and could only be initiated by husbands. The resistance toward and rarity of divorce continued well into the nineteenth century..
Divorce law in the American colonies was somewhat influenced by the British, but more so by the colonists themselves. England did not want its American colonies to enact any type of law, which conflicted with English law. Thus, a colonial divorce was not considered final until the English monarch had approved it. Nevertheless, several colonies adopted their own laws permitting divorce, often under odd circumstances. Under one late seventeenth century Pennsylvania law if a married man committed SODOMY or bestiality, his punishment was castration, after which the wife was permitted to divorce him. In Connecticut divorce was allowed on the grounds of ADULTERY, desertion, and the husband's failure in his CONJUGAL duties. In Massachusetts, divorce was permitted if one of the parties committed adultery.
The U. S. Constitution left divorce regulation to the states. State legislatures passed laws that granted divorce based on a showing of fault. If a divorce was contested, the divorcing spouse was required to establish, before a court, specific grounds for the action. If the court felt that the divorcing spouse had not sufficiently proven the grounds alleged, the petition for divorce could be denied and the case dismissed.
The most common traditional grounds for divorce were cruelty, desertion, and adultery. Other grounds included nonsupport or neglect, alcoholism or other drug addiction, insanity, criminal CONVICTION, and voluntary separation. In 1933, New Mexico became the first state to allow divorce on the ground of incompatibility. In 1969 California completely revised its divorce laws, providing that a filing party merely show IRRECONCILABLE DIFFERENCES resulting in an irremediable breakdown of the marriage. California's was the first comprehensive "no-fault" divorce law, and it inspired nationwide divorce law reform. In 1970 the National Conference of Commissioners on Uniform State Laws prepared a Uniform Marriage and Divorce Act, which provides for no-fault divorce if a court finds that the marriage is "irretrievably broken." Many states adopted the act. By 1980, nearly every state legislature had enacted laws allowing no-fault divorces or divorces after a specified period of separation. Some states replaced all traditional grounds with a single no-fault provision. Other states added the ground of irreconcilable differences to existing statutes. In those states a divorce petitioner remains free to file for divorce under traditional grounds.
By 1987, all fifty states had adopted no-fault divorce laws, exclusively or as an option to traditional fault-grounded divorce. Despite the obvious advantages, no-fault divorce laws sometimes leave parties with no real remedy for harmful acts of a spouse. Most states have laws that prevent one spouse from suing the other. Fault has survived in some aspects of divorce proceedings. Under current theories, marital misconduct is irrelevant to the divorce itself, but it may be relevant to related matters such as CHILD CUSTODY, CHILD SUPPORT, and child visitation rights, spousal maintenance, and property distribution.
Legal separation is similar to a divorce in that papers are filed, there is often a CUSTODY or PROPERTY SETTLEMENT ordered by the court, but the parties remain married. There may be benefits to this type of arrangement, but they are few. In most states, it is difficult to convert a legal separation into a divorce, and it requires beginning the process over with the filing of a divorce petition.
ANNULMENT is a legal process in which a court essentially determines the parties were never legally married to begin with and the marriage is null and void. Annulments are not often granted, but grounds for doing so include if one party is incapable of consent, due to mental state or INTOXICATION, FRAUDabout some aspect of the marriage, or a failure to CONSUMMATE the marriage. Annulments are regulated by state law.
Property distribution includes issues of real estate, PERSONAL PROPERTY, cash savings, stocks, BONDS, savings plans, and retirement benefits. The statutes that govern property division vary by state, but they can generally be grouped into two types: equitable distribution and COMMUNITY PROPERTY.
Most states follow the equitable distribution method. Generally, this method provides that courts divide assets in a fair and equitable manner. Some equitable distribution states look to the conduct of the parties and permit findings of marital fault to affect property distribution. In others only fault relating to economic welfare is relevant in property distribution. Yet other states entirely exclude marital misconduct from consideration in DISPOSITION property. Equitable distribution rules give the court considerable discretion in which to divide property between the parties. The courts consider the joint assets held by the parties and separate assets that the parties either brought with them into the marriage or inherited or received as gifts during the marriage. Generally, if the separate property is kept separate during the marriage and not commingled with joint assets, then the court will recognize that it belongs separately to the individual spouse and will not divide it along with the marital assets.
Equitable distribution states consider contributions (often including homemaker contributions) by each spouse made to the marriage. If one party made a greater contribution, the court may grant that person more of the joint assets. Some states do not consider a professional degree earned by one spouse during the marriage to be a joint asset but do acknowledge any financial support contributed by the other spouse and let that be reflected in the property distribution. Other states do consider a professional degree or license to be a joint marital asset and have devised various ways to distribute it or its benefits.
States that follow community property laws provide that nearly all the property acquired during the marriage belongs to the marital "community," such that the husband and wife each have a one-half interest in it upon death or divorce. It is presumed that all property acquired during the marriage by either spouse, including EARNED INCOME, belongs to the community. Property obtained by gift or through INHERITANCE is considered separate, unless it is comingled with community property. Upon divorce each party gets all separate property, as well as one-half of the community property.
In 1982 Congress passed a law, the Uniformed Services Former Parties' Protection Act, that permits state courts to treat military retired pay as property. In community property states and many other states, a formula is used when the member has already retired. But for an active duty member, there may be no state law that specifies how the award is to be calculated.
ALIMONY, or spousal maintenance, is the financial support that one spouse provides to the other after divorce. It is separate from, and in addition to, the division of marital property. It can be either temporary or permanent. Factors relevant to an order of maintenance include the age and marketable skills of the intended recipient, the length of the marriage, and the income of both parties. Maintenance is most often used to provide support to a spouse who was financially dependent on the other during the marriage. Many states allow courts to consider marital fault in determining whether, and how much, maintenance should be granted.
Between the time a dissolution action is filed and the time a judgment of dissolution becomes effective, the court may use temporary orders to resolve any issue in the case, including temporary support and temporary allocation of assets. Temporary orders address the immediate concerns of the parties, but also frequently form the basis for the permanent orders later in the final DECREE.
JURISDICTION over a divorce case is usually determined by residency. That is, a divorcing spouse is required to bring the divorce action in the state where she or he maintains a permanent home. States are obligated to acknowledge a divorce obtained in another state. This rule is from the Full Faith and Credit Clause of the U.S. Constitution, which requires states to recognize the valid laws and court orders of other states. Under the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution, a state must make divorce available to everyone. If a party seeking divorce cannot afford the court expenses, filing fees, and costs attached to the serving or publication of legal papers, the party may file for divorce free of charge. Typically, in a divorce proceeding or dissolution action the parties are referred to as the "petitioner," and the "respondent." The petitioner is the spouse who initiates the dissolution proceeding. The other spouse is the respondent. A dissolution action begins with one spouse filing a document known as a petition or complaint. The other spouse must then be served with these papers and has a specific time frame in which to respond. The ultimate goal of any dissolution action is to obtain a decree or judgment. The decree will resolve every issue in the case, including child support and visitation, division of assets and debts, and spousal support.
There are basically three methods for securing a divorce decree. If the respondent is properly served, but never files a response, the petitioner can request that the court order the divorce by DEFAULT. Also, the couple may agree on all the issues in the case and obtain a decree by SETTLEMENT, stipulation, or agreement. If the parties cannot agree, the case can be decided by a judge after a trial.
Insurance is considered a form of property in a divorce. The owner of the insurance policy controls the policy and has the right to name the beneficiaries. Although some laws prohibit the changing of insurance policies while a divorce is pending, once a divorce is final, insurance can become an important issue. Divorce is a qualifying event for benefits under Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA). Under this act, any person who would lose employer-based coverage because of divorce can choose to purchase continued coverage for up to 36 months. The act applies to employers with 20 or more employees, but the coverage is not automatic. The spouse seeking coverage must contact the employer within 60 days of the qualifying event and complete the necessary paperwork. Some decrees include a provision for life insurance on the provider, to protect the support order.
Divorce From Parents (Emancipation)
One method children can use to "divorce" their parents is to become emancipated. The word "emancipation" means to become free from the control or restraint of another. In the context of emancipated minors, EMANCIPATION is a legal procedure whereby children become legally responsible for themselves and their parents are no longer responsible. Emancipated children are freed from parental custody and control and are adults for most legal purposes. Parents of a child have not only responsibility for the child but also legal control over any money the child may earn. Many famous child performers and athletes have sued their parents, often claiming that money earning by the child star was mismanaged, seeking to have the courts declare the child an adult. In fact, it is possible for a child or a teenager to seek legal emancipation and be declared an adult before age 18, although the process can be difficult. In order to become emancipated, a minor must convince a judge he or she has a place to live and sufficient money and income to be self-supporting. But since minors are not permitted to sign legally binding contracts such as rental agreements, proving such self-sufficiency can be difficult. Emancipation does not require any proof of abuse or neglect by the parents. It can be granted for educational purposes, if a teenager is starting college early and wants to rent an apartment. Many young actors and musicians who are not fighting with their parents over money seek emancipation in order to avoid strict CHILD LABOR LAWS. Emancipation laws vary from state to state. Some states have no age restrictions, while others set the age from 14 to 17. Some states also require parental consent or ACQUIESCENCE, which may be demonstrated by CIRCUMSTANTIAL EVIDENCE. Emancipation is typically automatic when a teenager marries or joins the military; however, emancipation does not override age restrictions for getting married. Some states require the emancipated teen to undergo counseling with an appointed advisor.
An emancipated minor is entitled to make almost all medical, dental, and psychiatric care decisions, enter into a contract, sue and be sued, make a will, buy or sell property, and apply for a work permit without parental consent. The emancipated minor is obligated to self-support but must also follow state laws regarding such requirements as compulsory school attendance. Federal age rules relating to actions such as selective service registration, and voting rights do not change simply because a minor is emancipated.
State law varies considerably with respect to divorce. States have various residency requirements, property rules, and spousal support provisions. In the United States, each state regulates its own domestic relations. Most courts ignore marital fault in determining whether to grant a divorce, but many still consider fault in setting future obligations between the parties. To determine the rights and obligations of the parties in a dissolution proceeding, one must consult the divorce laws for the state in which the divorce was filed.
ALABAMA: The party filing for divorce must have resided in the State for at least six months before filing for divorce. At a minimum, Alabama law has a 30-day waiting period before a divorce can be granted.
ALASKA: No period of residence is required. After filing of complaint, however, 30 days must elapse before divorce action may be heard. A divorce may be granted for any of the following grounds: failure to consummate the marriage at the time of the marriage and continuing at the commencement of the action; adultery; conviction of a FELONY; willful desertion for a period of one year; cruel and inhuman treatment calculated to impair health or endanger life; personal indignities rendering life burdensome; incompatibility of temperament; HABITUAL gross DRUNKENNESS contracted since marriage and continuing for one year prior to the commencement of the action; incurable mental illness when the spouse has been confined to an institution for a period of at least 18 months immediately preceding the commencement of the action; addiction of either party, subsequent to the marriage, to the habitual use of opium, morphine, cocaine, or a similar drug. Parties may jointly petition for dissolution of marriage on ground of incompatibility of temperament causing an irremediable breakdown of the marriage, so long as they have agreed to property distribution, support, custody, and visitation. Alaska's equitable distribution STATUTE establishes a three-tier version of the dual classification model. Property acquired during the marriage, except for gifts and inheritance, is classified as marital property, and it is divided equitably upon divorce. Property acquired before the marriage is not marital property but can be divided upon divorce if "the balancing of the equities between the parties requires it." The court may allow an amount of money for spousal support, for either a limited time or an indefinite time, in gross or in installments, without regard to fault.
ARIZONA: One party must be domiciled in the state for 90 days prior to the filing of the action. Arizona requires only that the filing party ALLEGE irretrievable breakdown of the marriage. Arizona is a community property state. Property held in common must be divided equitably without regard to marital conduct. The court may consider excessive or abnormal expenditures, destruction, concealment, or FRAUDULENT disposition of community, joint TENANCY, and other property held in common in dividing the property. Spousal support may be granted to either spouse if the spouse seeking such spousal is unable, through appropriate employment, to provide self-support or is the custodian of a child at home. Support can also be awarded if a spouse contributed to the educational opportunities of the other spouse or had a long marriage and is of an age that may preclude employment. If spousal support is awarded it is without regard to marital fault. Factors the court will consider include: the couple's standard of living during marriage; the duration of the marriage; the age, employment history, earning ability, physical and emotional condition of the recipient spouse; financial resources and earning abilities of parties; any reduced income or career opportunities; and excessive or abnormal expenditures, destruction, concealment or fraudulent disposition of community assets.
ARKANSAS: Presence is required in the state by one party for 60 days before commencement of the action, plus another 30 days before the final decree may be entered. Grounds for divorce in Arkansas include voluntary separation without COHABITATION for 18 months; impotency; felony conviction; habitual drunkenness for one year; cruel and barbarous treatment; indignities to the person; adultery; three year separation by reason of confinement for incurable insanity; willful nonsupport. Marital property is divided equally between the parties unless the court finds that equal division is inequitable. The only usual aspect of Arkansas equitable distribution law is its treatment of property held as tenants by the entireties, which is divided by legal title. Spousal support may be awarded to either party in fixed installments for a specific period of time.
CALIFORNIA: Either party must be a resident of the state for six months, and a resident of the county for three months. A filing party need only allege irreconcilable differences or incurable insanity. California is a community property state. Community property is property acquired by either party during the marriage in any type of joint form. Unless the parties otherwise agree, the court divides the community property estate equally. The court may award spousal support in an amount, and for a period of time, that the court determines is just and reasonable, based upon the standard of living established during the marriage. In awarding spousal support, there is a goal that the supported spouse be self-supporting within a reasonable period of time. The court retains jurisdiction to modify spousal support in all cases of marriages over ten years unless the parties otherwise agree. There is a presumption for spousal support decreases on the recipient's cohabitation.
COLORADO: Either party must be domiciled in the state for 90 days before commencement of the proceeding. A filing party need only allege irretrievable breakdown of the marriage. Colorado adopts the traditional dual classification of property under Uniform Marriage and Divorce Act. Separate property, defined as property owned before the marriage and property acquired by gift, inheritance, is retained by the owning party. Marital property includes property that is not separate property, property acquired during the marriage, including the increase in value of separate property. The court divides the marital property as it deems just, without regard to marital fault, considering the contributions of each spouse to the acquisition of the marital property, the value of each party's separate property, the economic circumstances of the parties, depletion of separate property for marital purposes. The court may order spousal support if a spouse lacks sufficient property to provide for his/her reasonable needs, is unable to support him/herself through appropriate employment, or is the custodian of a child whose age or condition makes it inappropriate for the spouse to seek employment outside the home.
CONNECTICUT: There is no residence requirement for filing; however, the Decree of Divorce can only be entered after one party has been a resident for a year. The party filing may allege irretrievable breakdown of the marriage or that the parties have lived apart for 18 months due to incompatibility, with no reasonable prospect of reconciliation. Adultery, fraudulent contract, desertion for one year, seven years' absence, habitual intemperance, intolerable cruelty, or sentencing to IMPRISONMENT for life or the commission of any infamous crime involving a violation of conjugal duty and punishable by imprisonment for over one year are also valid grounds. The court values and distributes all property and awards spousal support by considering the causes of the dissolution, the length of the marriage, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, needs of each party, opportunity for future acquisition of capital assets and income, contribution of each party to the marital and separate estates.
DISTRICT OF COLUMBIA: The party filing must live in the jurisdiction for six months. The parties must have mutually and voluntarily lived separate and apart without cohabitation for a period of six months, or the parties have lived separate and apart for one year. Factors for equitable division of property include length of the marriage, and the age, health, and occupation of parties. The court takes into consideration the value of homemaker services. The court may grant spousal support and may decree that a party retains dower rights in the other's estate.
FLORIDA: One party must live in the state for six months prior to the commencement of the action. The filing party need only allege irretrievable breakdown of the marriage or spousal mental incapacity for three years. If there are minor children, or if a claim of irretrievable breakdown is denied the court may order counseling, continue the proceedings for three months, or take such other action as may be in the best interests of the parties and children of the marriage. Florida follows an equitable distribution of property policy, based on dual classification of property into separate and marital estates. In distributing the marital estate, the court presumes a 50/50 division, but that may be altered by factors including the contribution to the marriage by each spouse, including homemaker services, the economic circumstances of the parties, the duration of the marriage, any interruption in career or educational opportunities, the contribution of each spouse to the acquisition, enhancement, and production of income or marital assets, and any action during the pending divorce proceedings which depletes marital assets. The court may grant spousal support to either party, which may be permanent or rehabilitative in nature. The court may order periodic payments or payments in lump sum, or both. The court may consider the adultery of each spouse. The court considers the standard of living established during the marriage, the duration of the marriage, the age and health of the parties, the financial resources of the parties, the time necessary to become fully employed, and the contribution of the parties to the marriage.
GEORGIA: One spouse must have resided in Georgia for six months prior to filing. Grounds include irretrievable breakdown; mental incapacity or impotency at the time of the marriage; fraud in obtaining the marriage; adultery; desertion for one year; conviction of an offense involving moral turpitude and imprisonment for two or more years; habitual intoxication or other drug addiction; cruel treatment; incurable mental illness. A dual classification system was adopted, with separate property comprising property acquired before marriage, property acquired by gift, and property acquired by inheritance. Temporary or permanent spousal support may be granted, except in cases of adultery and desertion. The court may consider the conduct of the parties toward one another, in addition to needs and ability to pay, in deciding whether to award spousal support. If spousal support is to be awarded, the court considers, in deciding the amount, the standard of living established during the marriage, duration of the marriage, age and physical and emotional condition of the parties; contributions to the marriage, and financial condition of the parties.
HAWAII: The filing party must have lived in Hawaii for six months prior to filing. The filing party need only allege irretrievable breakdown or the marriage or that the parties have lived separate and apart for more than two years. Hawaii law provides for equitable distribution of all property, whether community, joint, or separate. The court considers the condition in which each party will be left by the divorce, the burdens imposed upon either party for the benefit of the children of the parties, and all other circumstances of the case. The court may award indefinite or rehabilitative periodic spousal support. The court considers the respective merits of the parties, the usual occupation of the parties during the marriage, and the vocational skills and employability of the party seeking support and spousal support.
ILLINOIS: The filing party must have lived in the state for 90 days prior to filing. The filing party need only allege irreconcilable differences causing the irretrievable breakdown of the marriage. Fault grounds are impotency, BIGAMY, adultery, desertion for one year, habitual drunkenness or other drug addiction for two years, an attempt to take the life of the other, physical or mental cruelty, conviction of a felony or other infamous crime, or infecting the other with a sexually transmitted disease. Illinois law provides for equitable distribution of marital property upon divorce, without regard to marital misconduct, based on dual classification of property. Marital property is all property acquired during the marriage, except property acquired by gift, BEQUEST, devise, or descent, and property acquired before the marriage. The court may award rehabilitative, periodic, or permanent spousal support, without regard to marital misconduct. Spousal support terminates on cohabitation.
INDIANA: The party filing must live in the state for six months and for three months in the county where the petition is filed. The party filing need only allege irretrievable breakdown of the marriage. Fault grounds include conviction of a felony, impotency existing at the time of the marriage, and incurable insanity for three years. Division of property carries a presumption that equal division is just and reasonable. The presumption may be overcome by sufficient proof. Rehabilitative spousal support may be granted for a maximum of three years. The court may order permanent periodic spousal support if a spouse is physically or mentally incapacitated or where a spouse lacks sufficient property and is the custodial parent of a child whose incapacity requires the GUARDIAN to forego employment.
IOWA: The complainant must live in the jurisdiction one year. Divorce may be granted upon breakdown of the marriage relationship to the extent that the legitimate objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be saved. Marital property is property acquired during the marriage except that acquired by gift or bequest. The court may grant limited or indefinite spousal support.
KENTUCKY: The filing party must reside in the state for 180 days prior to filing. The filing party need only allege irretrievable breakdown of marriage. The decree cannot be entered until the parties have lived separate and apart for at least 60 days. Kentucky follows an equitable division of property theory, based on dual classification of property found in the Uniform Marriage and Divorce Act. Property is divided without regard to marital misconduct. Spousal support may be rehabilitative, periodic, or lump sum. The court may order spousal support only if it finds that the spouse seeking spousal support lacks sufficient property, is unable to be self supporting, or is the custodian or a child whose age or condition makes it appropriate that the custodian not seek employment outside the home.
LOUISIANA: Six months residence is required of the filing party. Except in the case of a covenant marriage, divorce shall be granted upon motion of either spouse upon proof of 180 days' lapse since service or petition and separation of 180 days before filing of motion. Louisiana is a community property state. Community assets and liabilities are divided so that each spouse receives property of equal value. The court may award final periodic support, up to 1/3 of the obligor's NET income, to a party free from fault based on the needs of that party and the ability of the other to pay.
MARYLAND: Maryland requires residence or one year residence if the cause of action for divorce occurred outside the state. Marital property is defined as property acquired during the marriage. This includes pensions and profit sharing plans. In dividing the marital property, the court considers: contributions, monetary and non-monetary, of each party to the well-being of the family; the value of the property interest of each party; the economic circumstances of the parties at the time the award is made; the circumstances that contributed to the estrangement of the parties; the duration of the marriage; the age of each party; the physical and mental condition of each party; how and when specific marital property or interest in a PENSION, retirement, profit sharing, or deferred compensation plan was acquired; contribution of non-marital property to entireties property; any spousal support award; any other factor deemed necessary. The court may award rehabilitative or indefinite spousal support, periodic or lump sum. Indefinite spousal support, however is awardable only if the requesting spouse cannot reasonably be expected to make substantial progress toward becoming self-sufficient or the parties' respective standards of living would be unconscionably disparate.
MAINE: The filing party must live in the jurisdiction for six months prior to filing. Marital property is defined as all property acquired by either spouse during the marriage, except property acquired by gift, bequest, devise or descent; property acquired in exchange for pre-marital property or in exchange for property acquired by gift, bequest, devise or descent; property acquired after decree of legal separation; property excluded by valid agreement of the parties; increase in value of property acquired prior to the marriage. The court divides the marital property after considering the contribution of reach spouse to the acquisition of marital property, including homemaker efforts; the value of each spouse's separate property; the economic circumstances of each spouse. The court may award periodic or lump sum spousal support. The court may also award nonmodifiable spousal support.
MASSACHUSETTS: Either party can be a resident if the cause of action occurred within the state. Otherwise, there is a one-year residency requirement. Fault grounds include: adultery; impotency; desertion for one year; confirmed habits of intoxication cause by the use of alcohol or other drugs; cruel and abusive treatment; refusal to provide suitable spousal support. The parties also have the option of filing affidavits that the marriage is irretrievably broken, and can then, within 90 days, file a separation agreement. Parties may also file a complaint alleging irretrievable breakdown without a separation agreement, and the court may order the divorce after six months have elapsed. The court may assign to either the husband or the wife part of the estate of the other. The court may award periodic or lump sum spousal support. Factors in awarding spousal support include: homemaker's contributions; the employability of each party; the needs of each party; the opportunity for the future acquisition of capital assets and income.
MICHIGAN: Immediately prior to filing for divorce, one of the parties must have been a resident for 180 days and a resident of the county where the divorce is filed for 10 days. The filing party need only allege breakdown of the marriage relationship to the extent that the objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved. The court can award one spouse any property owned by the other party if it appears from the EVIDENCE in the case that the party contributed to the acquisition, improvement, or accumulation of the property. Either spouse may be ordered to pay spousal support "in gross" or otherwise. Factors to be considered include the ability of either spouse to pay and the respective circumstances of the parties.
MINNESOTA: One of the parties must have been a resident for 180 days immediately before the petition for divorce is filed. The petition may be filed in a county where either spouse resides. The filing party need allege irrevocable breakdown of the marriage relationship demonstrated by living separate and apart for 180 days or serious marital discord adversely affecting the attitude of one or both parties. In dividing marital property, the court considers the contribution of each spouse to the acquisition of the property, including homemaker contributions; the economic circumstances of the parties; the length of the marriage; the age and health of the parties; the occupation of the parties; the amount and sources of income of the parties; the vocational skills of the parties; the employability of each spouse; the liabilities and needs of the parties, and the opportunity for further acquisition of capital assets; any prior marriage of each spouse; any other factor necessary to achieve equity and justice between the parties. The court may order temporary or permanent spousal support, without regard to marital fault, after the consideration of eleven factors, including need, the ability to become employed, the standard of living during the marriage, the duration of the marriage, loss of earnings, age and condition of both parties.
MISSISSIPPI: One of the parties must have been a resident for at least six months prior to filing and not have secured residency solely for the purpose of procuring a divorce. Special venue provisions based on whether the divorce is no-fault or fault-based. Irreconcilable differences are sufficient for divorce. Other grounds include: impotence; adultery; imprisonment; alcoholism and/or other drug addiction; confinement for incurable insanity for at least three years before the divorce is filed; the wife was pregnant by another man at the time of the marriage without husband's knowledge; willful desertion for at least one year; cruel and inhumane treatment; spouse lacked mental capacity at time of marriage; INCEST; bigamous marriage. Mississippi is an equitable distribution dual classification state. Either spouse may be awarded spousal support if it is equitable.
MISSOURI: One of the parties must be a resident of Missouri for 90 days before filing. The dissolution petition must be filed in the county where the plaintiff resides. There is a 30-day waiting period after filing before the dissolution will be granted. Irretrievable breakdown of marriage is sufficient for divorce. Missouri adopted the Uniform Marriage and Divorce Act. The court may award rehabilitative, periodic, or lump sum spousal support. The spousal support shall be in such amounts and for such periods of time as the court deems just.
MONTANA: One of the parties must be a resident of Montana for 90 days immediately prior to filing. The dissolution of marriage petition must be filed in the county where the petitioner has been a resident for the previous 90 days. The party must allege irretrievable breakdown of marriage, supported by evidence that the parties have lived separate and apart for 180 days. Montana adopted the all-property provisions of the Uniform Marriage and Divorce Act. The court may divide, without regard to marital misconduct, the property of the parties and assets belonging to either or both. Either spouse may be awarded spousal support. The award is made without regard to marital fault.
NEBRASKA: One of the parties must have been a resident for at least one year, or the marriage must have been performed in Nebraska and one of the parties lived in Nebraska for the entire marriage. The dissolution may be filed in a county where either spouse lives. There is a 30-day waiting period after service of the petition before the court can decide the case. Irretrievable breakdown of marriage or lack of mental capacity at time of marriage is sufficient to obtain a divorce. The parties keep any separate property acquired before the marriage. All marital property, which includes gifts and inheritances acquired during the marriage, may be divided. Either spouse may be ordered to pay reasonable spousal support, without regard to marital fault.
NEVADA: One of the parties must have lived in Nevada for at least six weeks prior to filing to divorce. The filing party need only allege. Nevada is a community property state. The court can make an unequal disposition of community property if the court finds a compelling reason to do so. The court may award such spousal support to the husband or the wife in specified principal sum or a specified period of payments.
NEW HAMPSHIRE: Both parties must be residents of the state when the divorce is filed, or the spouse filing for divorce must have been a resident of New Hampshire for one year immediately prior to the filing of the divorce and the other spouse was personally served with process in New Hampshire, or the cause of divorce must have arisen in New Hampshire and one of the parties must be living in New Hampshire when the divorce is filed for. Irreconcilable differences, which have caused irremediable breakdown of the marriage, are sufficient grounds for divorce. The court may award spousal support to either party in need, either temporary or permanent, for a definite or indefinite period of time.
NEW MEXICO: One of the parties must have been a resident of New Mexico for at least six months immediately preceding the filing and have a home in New Mexico. Incompatibility because of discord and conflicts of personalities such that the legitimate ends of the marriage relationship have been destroyed, preventing any reasonable expectation of reconciliation is JUST CAUSE. New Mexico is a community property state. Each spouse retains his/her separate property acquired before the marriage. Separate property comprises property designated as such by written agreement, gifts, or inheritances. Community property shall be divided equally between the parties. "Quasi-community property," defined as property acquired outside New Mexico, which would be community property if acquired in New Mexico, is also be divided equally. Either spouse may be awarded a just and proper amount of spousal support, without regard to marital fault. Factors considered include: duration of the marriage, parties' current and future earning capacities, GOOD FAITH efforts to maintain employment or become self-supporting, needs and obligations of each spouse, age and health of each spouse, amount of property each spouse owns, standard of living during the marriage, medical and life insurance maintained during the marriage, assets of the parties, each spouse's liabilities, and any marital settlement agreements.
NEW JERSEY: One party must be a resident of New Jersey for at least one year prior to the filing for divorce, unless the cause of divorce is adultery and took place in New Jersey, in which case one of the spouses must be a resident at the time of filing. Living separate and apart for 18 months and no reasonable prospect of reconciliation is sufficient to obtain a no-fault divorce in New Jersey. Marital property is property legally and beneficially acquired during the marriage, except for property acquired by gift, devise, interstate SUCCESSION, except that gifts between spouses are considered marital property. Either party may be awarded spousal support without regard to marital fault. Spousal support may be permanent or rehabilitative.
NEW YORK: If both spouses resided in New York at the time of the filing of the divorce and the grounds for divorce arose in New York, there is no residency requirement. No-fault divorce is obtainable by living separate and apart. Fault grounds include: adultery; ABANDONMENT for one year; imprisonment for three or more consecutive years; and cruel and inhuman treatment. Separate property comprises property acquired before the marriage, gifts, inheritances, increase in value of separate property, and property acquired in exchange for separate property. Marital property is property acquired during the marriage and not separate property. Marital property is divided based on factors including custodial provisions, dissipation, and contributions as spouse, parent, wage earner, and homemaker. Either spouse may be awarded maintenance without regard to marital fault.
NORTH CAROLINA: Either spouse must have been a resident of North Carolina for at least six months prior to filing for divorce. Living separate and apart without cohabitation for one year is sufficient grounds to obtain a no-fault divorce. Separate property comprises any property acquired before the marriage, gifts and inheritances, property acquired in exchange for separate property, increase in value of separate property, expectation of a non-vested pension, retirement, or other deferred compensation rights. Marital property is property acquired during the marriage. Either spouse may be awarded spousal support. The amount, duration, and manner of payment is in the court's discretion; however, an award of spousal support is barred by "illicit sexual behavior."
OHIO: The spouse filing the divorce must have been a resident of Ohio for at least six months and a resident of the county for at least 90 days immediately prior to filing incompatibility is sufficient to obtain a divorce. Divorce may be obtained by filing a separation agreement, according to specific procedures. Each party retains separate property, defined as gifts, inheritances, property acquired prior to the marriage, income or APPRECIATION of separate property, individual proceeds from PERSONAL INJURY awards. Marital fault and spousal support are not to be considered in the division of property. Either spouse may be awarded reasonable spousal support, in real property or personal property, or both, or by decreeing a sum of money, payable either in gross or by installments, from future income or otherwise. Marital fault is not a consideration.
OKLAHOMA: Either party must have been a resident of Oklahoma for six months immediately prior to filing for divorce. Incompatibility is sufficient to obtain a divorce. Each spouse keeps separate property, defined as property owned prior to the marriage, gifts, and inheritances. All property held or acquired jointly during the marriage is divided between the spouses in a just and equitable manner. Marital fault is not a factor. Spousal support may be awarded to either spouse, in money or property, in lump sum or installments, having regard for the value of the property at the time of the award. Marital fault is not a consideration.
OREGON: If the marriage was not performed in Oregon, one spouse must have been a resident for six months immediately prior to filing. If the marriage was performed in Oregon and either spouse is a resident of Oregon, there is no residency requirement. Irreconcilable differences between the spouses that have caused the irretrievable breakdown of the marriage is the only grounds on which to obtain a divorce. Fault is abolished completely. Regardless of whether the property is held jointly or individually, there is a presumption that the spouses contributed equally to the acquisition of the property, unless proven otherwise. Either spouse may be required to make allowances for support of the other for his or her life or for a shorter period, having regard to the circumstances of the parties respectively.
PENNSYLVANIA: Either spouse must have been a resident for at least six months before filing. Pennsylvania's no-fault provisions require ALLEGATION of an irretrievable breakdown of the marriage with the spouses living separate and apart without cohabitation for two years. The couple can also file alleging irretrievable breakdown of the marriage with affidavits from both spouses that they consent to the divorce. The divorce can then be granted after 90 days. Separate and apart is defined as no cohabitation but is not precluded by living in the same residence. The parties retain their separate property, defined as property acquired before marriage, acquired in exchange for separate property, gifts and inheritances, and property designated separate by valid agreement. All other property is marital and is divided by the court equitably between the parties. A court may allow alimony to either party only if it finds that alimony is necessary. Pennsylvania has statewide spousal support guidelines that are presumed to be correct unless there is a showing that the amount would be unjust or inappropriate under the circumstances of the case.
RHODE ISLAND: Either spouse must have been a resident for one year prior to filing. Irreconcilable differences, which have caused the irremediable breakdown of the marriage, are sufficient grounds to obtain a divorce. Each spouse shall keep separate property, defined as property owned prior to the marriage, gifts, and inheritances. All property held or acquired jointly during the marriage is be divided in an equitable manner. Marital fault is not a factor. Spousal support may be awarded to either spouse, in money or property, in lump sum or installments. Marital fault is not an issue.
SOUTH CAROLINA: If both spouses are residents, the spouse filing for divorce must have been a resident for three months. If one of the spouses is not a resident, then the other spouse must have been a resident for one year. No-fault grounds are sufficiently established by the couple living separate and apart without cohabitation for one year. Fault grounds include: adultery; alcoholism or other drug addiction; physical abuse or reasonable apprehension of physical abuse; and willful desertion. During the marriage, a spouse acquires a vested special equity and ownership right in marital property. Each party retains separate property, defined as property acquired before the marriage, by gift or inheritance, in exchange for separate property, or from an increase in value of separate property. All other property is marital, subject to division on divorce. Fault is a factor. Either spouse may be awarded spousal support; however, no alimony may be awarded to a spouse who commits adultery.
SOUTH DAKOTA: The spouse filing the divorce must be a resident of South Dakota or a member of the Armed Forces stationed in South Dakota at the time of filing and must remain a resident until the divorce is final. Irreconcilable differences, which have caused the irretrievable breakdown of the marriage, are sufficient to obtain a divorce. Marital fault is not to be considered in apportioning the property. Either spouse may be awarded permanent or time-limited maintenance, based on the needs of the spouses.
TENNESSEE: No residency requirement if the party filing was a resident of Tennessee when the grounds for divorce arose. If the cause for divorce arose outside of Tennessee, then either spouse must have been a resident of Tennessee for six months. Irreconcilable differences are sufficient to obtain a divorce if there is no denial of this ground or if the spouses submit an executed marital dissolution agreement. Fault grounds include: impotence; adultery; conviction of a felony and imprisonment; alcoholism and/or other drug addiction; wife is pregnant by another man at the time of the marriage without husband's knowledge; and refusing the move to Tennessee with a spouse and willfully absenting oneself from a new residence for two years. Each spouse keeps separate property, defined as property owned prior to the marriage, gifts and inheritances, property acquired in exchange for separate property, income and appreciation of separate property. All property held or acquired jointly during the marriage shall be divided between the couple. Marital fault is not a factor. Spousal support may be lump sum, periodic, or rehabilitative, based on sixteen factors. Rehabilitative support is favored.
TEXAS: One of the parties must have resided in Texas for six months and must have resided for 90 days in the county prior to the filing of the petition There is a 60-day waiting period between filing for and granting of divorce. That the marriage has become unsupportable because of discord or conflict that has destroyed the legitimate ends of marriage is sufficient grounds to obtain a no-fault divorce. Texas is a community property state. Property acquired by either spouse during the marriage is presumed to be community property, and such property shall be divided equally. The court may also divide property acquired by either party during the marriage while residing outside the state of Texas which would have been community property had the parties been residing in Texas. The court may award maintenance for a spouse in limited circumstances. Spousal support may be ordered if the spouse from whom maintenance is sought has been convicted of DOMESTIC VIOLENCE within 2 years before the suit for dissolution. Spousal support may also be ordered if the duration of the marriage is over 10 years and the spouse seeking maintenance lacks sufficient property to provide for his/her reasonable minimum needs or is unable to support him/herself through employment because of an incapacitating physical or mental DISABILITY or is the custodial of a child who requires substantial care and supervision on account of a physical or mental disability or clearly lacks earning ability in the labor market to provide for minimum reasonable needs. A maintenance award may not last longer than three years unless there is a compelling impediment to the recipient spouse obtaining gainful employment.
UTAH: Either spouse must have been a resident of Utah or a member of the armed forces stationed in Utah and a resident of the county where the divorce is filed for more than three months immediately prior to the filing. There is a 90-day waiting period after filing before a divorce may be granted. Irreconcilable differences are sufficient grounds for a divorce to be granted. All of the couple's property, including gifts, inheritances, and any property acquired prior to or during the marriage, is divided by the court. Either spouse may be ordered to pay an equitable amount of spousal support, based on fault and the equity of equalizing the parties' incomes. Typically the court will not order spousal support for a period longer than the marriage existed.
VIRGINIA: One of the spouses must have been a resident of Virginia for at least six months prior to filing for divorce. Living separate and apart without cohabitation is sufficient grounds for a no-fault divorce. Marital property comprises property acquired during the marriage, excluding gifts from third parties and inheritances. Separate property is property acquired before the marriage, gifts from third parties and inheritances, any increase in value of separate property, property acquired in exchange for separate property The court cannot order the conveyance of separate or marital property not titled in the names of both parties, but it can award a monetary payment. Either spouse may be awarded maintenance, to be paid either in a lump sum, periodic payments, or both.
WASHINGTON: The spouse filing for dissolution must be a resident of Washington or a member of the armed forces stationed in Washington. The court will not act on the petition for divorce until 90 days after the filing of the complaint and service of the SUMMONS. Irretrievable break-down of marriage is sufficient grounds for the court to order a divorce. Washington is a community property state. The court divides community property in a just and equitable manner, without regard to marital conduct. Property acquired in another state is "quasicommunity property" and is divided as community property. The court may award rehabilitative, periodic, or lump-sum alimony to either spouse without regard to marital fault.
WEST VIRGINIA: One party must have been a resident for one year immediately prior to the filing. If the marriage was performed in West Virginia and one spouse is a resident at the time of filing, there is no residency requirement. Irreconcilable differences are sufficient grounds for a no-fault divorce. The court divides the marital property equally. Marital property is property acquired during the marriage, the increases in value of separate property that is the result of the use of marital funds or work performed by either party during the marriage. Either spouse may be ordered to provide the other spouse with spousal support; however, spousal support will not be ordered for a party who committed adultery, was convicted of a felony during the marriage, or deserted or abandoned the other spouse for six months.
WISCONSIN: One of the spouses must have been a resident of Wisconsin for six months and a resident of the county where the divorce is filed for thirty days immediately prior to filing. Irretrievable breakdown of marriage is sufficient grounds for divorce. Wisconsin is a community property state. The court may also divide any spouse's separate property in order to prevent a hardship for a spouse or for the children of the marriage. The court may award rehabilitative, limited, or indefinite, maintenance, without regard to marital misconduct. Additionally, the court may combine spousal and child support payments into a single family support payment.
WYOMING: The spouse filing for divorce must have been a resident of Wyoming for 60 days immediately prior to filing, or if the marriage was performed in Wyoming, then the spouse filing must have resided in Wyoming from the time of the marriage until the time of the filing. Irreconcilable differences are sufficient to obtain a divorce. The state follows a plan of equitable distribution of all property of both spouses, including gifts and inheritances. Either spouse may be awarded spousal support.
What Every Woman Should Know About Divorce and Custody: Judges, Lawyers, and Therapists Share Winning Strategies On How to Keep the Kids, the Cash, and Your Sanity. Rosenwald, Gayle, Berkley Publishing Group, 1998.
Your Divorce Advisor: A Lawyer and a Psychologist Guide You through the Legal and Emotional Landscape of Divorce. Mercer, Diana, Diane and Pruett, Marsha Kline. Simon & Schuster, 2001.
American Bar Association
750 N. Lake Shore Dr.
Chicago, IL 60611 USA
Phone: (312) 988-5603
Fax: (312) 988-6800
Domestic Violence (Encyclopedia of Everyday Law)
DOMESTIC VIOLENCE consists of acts committed in the context of an adult intimate relationship. It is a CONTINUANCE of aggressive and controlling behaviors, including physical, sexual, and psychological attacks, that one adult intimate does to another. Domestic violence is purposeful and instrumental behavior directed at achieving compliance from, or control over, the abused party. It is one of the most under-reported crimes in the United States, and the Department of Justice in 1998 estimated that there are between 960,000 and four million domestic incidents each year. In 1994, the Bureau of Justice Statistics estimated that about 92 percent of domestic violence cases involve female victims.
Legal definitions of domestic violence are usually delineated by the relationship between the parties and by the nature of the perpetrator's abusive behaviors. For example, the relationship may be a current spouse, a former spouse, a family member, a child, parents of a child in common, unmarried persons of different genders living as spouses, intimate partners of the same gender, dating relationships, and persons offering refuge. Such definitions recognize that victims may not be exclusively women, and domestic assaults may not just occur between heterosexual couples. The types of behavior frequently encountered in domestic violence are physical attacks, sexual attacks, psychological abuse, and the destruction of property or pets.
History of Police Responses to Domestic Violence
Police responses to domestic violence have historically been clouded by notions, for example, the idea that a wife is the "property" of a husband and he has the right to carry out whatever behavior is necessary to "keep her in line." This idea and others like it reflect attitudes held by the greater society. Further aggravating the situation was the perception that domestic violence is not "real police work," and such disputes are private matters that should be kept within the household. Prior to 1980, when domestic situations were brought to the attention of police, calls were often diverted by dispatchers, given a lower priority, or officers responded to the scene and departed again as quickly as possible without achieving any type of meaningful intervention. Laws such as the "rule of thumb" (whereby it was legal for a husband to beat his wife with a stick not wider than his thumb) were still on the books until very recent times.
Prior to the 1980s, the practice of police agencies was to use mediation in domestic incidents. But ironically, much of this so-called mediation was done only when only one spouse was present. Several prominent court cases helped change legislation. In 1972, Ruth Bunnell was killed as a result of police non-intervention. The case of WRONGFUL DEATH against the City of San Jose was dismissed in the California Court of Appeals but received much publicity. In 1985, a jury verdict awarded $2.3 million in favor of plaintiff Tracy Thurman who sued the Torrington, CT, police department after they repeatedly failed to arrest her abusive husband (Thurman v. City of Torrington, 1985). Her husband eventually caused her serious bodily injury.
Another landmark case is currently being heard in the California courts system. In 1996, Maria Macias was killed by her estranged husband after an order of protection was not enforced by the Sonoma County Sheriff's Department. The victim had requested help from the department on 22 occasions. The lower courts held that women have a constitutional right to safety and EQUAL PROTECTION, and the Sonoma County Sheriff's Department provided inadequate police protection based on the victim's status as a woman and a victim of domestic violence. The case is due to be heard in April, 2002 in the Appeals Court of California (99-15662).
Beginning in the late 1980s, there were many attempts to change the way police departments intervened in domestic violence situations. Inspired by Sherman's Minneapolis experiment, many police agencies adopted preferred or mandatory arrest policies. Arrest both acknowledges that society views domestic violence as a criminal offense and also provides immediate safety for the victim. Accompanying these new arrest policies were civil proceedings (discussed below).
Recent Federal Legislation
The 1994Violence Against Women Act (VAWA), with additions passed in 1996, outlined grant programs to prevent violence against women and established a national domestic violence hotline. In addition, new protections were given to victims of domestic abuse, such as confidentiality of new address and changes to IMMIGRATION laws that allow a battered spouse to apply for permanent residency.
According to the VAWA Act, a domestic violence MISDEMEANOR is one in which someone is convicted for a crime "committed by an intimate partner, parent, or GUARDIAN of the victim that required the use or attempted use of physical force or the threatened use of a deadly weapon" (Section 922 (g)). Under these guidelines, an intimate partner is a spouse, a former spouse, a person who shares a child in common with the victim, or a person who cohabits or has cohabited with the victim.
Another area this act addresses is interstate traveling for the purposes of committing an act of domestic violence or violating an order of protection. A convicted abuser may not follow the victim into another state, nor may a convicted abuser force a victim to move to another state. Previously, orders of protection issued in one JURISDICTION were not always recognized in another jurisdiction. The VAWA specifies full faith and credit to all orders of protection issued in any civil or criminal proceeding, or by any Indian tribe, meaning that those orders can be fully enforced in another jurisdiction. Forty-seven states have now passed legislation that recognizes orders of protection issued in other jurisdictions. Three states, Alaska, Montana, and Pennsylvania, require that an out of state order be filed with an in state jurisdiction before the order can be enforced.
There are several landmark cases that have been decided under these new interstate provisions. For example, in the United States v. Rita Gluzman (NY), the DEFENDANT traveled from New Jersey to New York with the intention of killing her estranged husband. The weapons she took with her were used in the murder. Gluzman was convicted for this crime. In the UNITED STATES V. MARK A. STERKEL (1997), the defendant was convicted of interstate STALKING after traveling from Utah to Arizona to threaten his former boss.
The VAWA also allows victims of domestic abuse to sue for damages in civil court. However, this part of the VAWA was recently overturned by the U. S. Supreme Court in Brzonkala v. Morrison (2000) in which the court held that Congress did not have the authority to implement such a law.
Another goal of the VAWA was to influence state legislators, particularly in regard to arrest policy for domestic situations. In order to receive Federal funding, states must adopt certain responses. The Act reads: VAWA 1994: (1) To implement mandatory arrest or pro-arrest programs and policies in police departments, including mandatory arrest programs and policies for protection order violations (Part U, SEC. 2101). This act has had a profound effect on state laws governing domestic abuse.
Until about ten years ago, many states still had laws that required an officer to witness an ASSAULT before making an arrest. Today, officers in all states can arrest someone they suspect has committed a domestic assault without having witnessed the event. The majority of states have adopted preferred arrest policies which require police to either arrest one or both parties at the scene, or write a report justifying why an arrest is not made. Arrest policies do differ by jurisdiction even in the same state. Some states, such as New York, Wisconsin, and Minnesota, have adopted mandatory arrest policies which dictate that an officer must make an arrest at a domestic situation. Such policies were adopted after it was realized how serious domestic situations could be for the victims and their children. An arrest is usually made after the following conditions have been satisfied:
- There is PROBABLE CAUSE of a crime;
- The suspect and the victim fit the definition of having a domestic relationship;
- The suspect's alleged act fits the definitions of domestic assault;
- There is reason to believe that the domestic abuse will continue if the suspect is not arrested and/or there EVIDENCE of injury;
- The incident was reported within 28 days of occurrence.
Usually, if any of these conditions is not satisfied, the officer may use his or her discretion in deciding whether to make an arrest. Although different states have variations on definitions of domestic violence, most are similar to the following example.
MINNESOTA: 1) domestic abuse means physical harm, bodily injury, or assault; 2) the infliction of fear of imminent physical harm, bodily injury, or assault or; 3) terrorist threats or criminal sexual conduct (518B.01).
Civil and Other Proceedings
There are several available civil options that can provide for the safety of victims of domestic assaults and their families, such as an order of protection or a judicial ex parte order. All 51 states have allowances for orders of protection. An order of protection can prohibit the abuser from contacting, attacking, striking, telephoning, or disturbing the peace of the victim; force the abuser to move from a residence shared with the victim; order the abuser to stay at least 100 yards away from the victim, his or her place of residence, and place of employment; order the abuser to attend counseling; and prohibit the abuser from purchasing a firearm. Orders of protection may also include a provision for the safety of children and others living in the home.
An ex parte order requires the abusive cohabitant to temporarily vacate the premises. Issued only after the battered spouse seeks it, this order is sometimes referred to as a temporary RESTRAINING ORDER. In most states, a cohabitant refers to a person who has a sexual relationship with the victim and has lived with the victim for at least 90 days during the year prior to the order being filed. A victim who is threatened with imminent harm or has already been harmed by the abuser and/or already has an order of protection against the abuser has no other legal remedy than to seek a restraining order. In most states, an attorney is needed to get a restraining order.
Violation of an order of protection is the equivalent of CONTEMPT of a court order. In many states, police policy is to arrest violators automatically. A violator can also be fined and jailed and may be charged with a misdemeanor or a FELONY.
Domestic Violence and the Workplace
Domestic violence can reach beyond the home and into the workplace. Although a victim may leave the home and go to a shelter or change her or his address, the abuser usually knows where the victim works. Not only do abusers harass their partners at work, domestic violence can lead to missed days of work because of injuries or court appearances. Federal and state legislation has recently been amended so that victims of domestic violence are not penalized by employers for missed work.
At the Federal level, LABOR LAW Section 593 (1) states that when a victim of domestic violence voluntarily terminates his or her job, he or she is eligible for unemployment benefits. The Penal Law, Section 215.14, passed in 1996, makes it a crime to penalize an employee who has been a victim or a witness to a criminal offense and who must attend court. Further, both state and federal guidelines mandate that employers maintain a safe work environment.
Domestic Violence and Firearms
Under the 1994 VAWA Act, it is illegal for individuals who have been convicted of a domestic-violence related incident or who have an order of protection against them, to possess a firearm. Specifically, federal law prohibits the shipping, transporting, possessing, or receiving firearms or ammunition. Military and law enforcement personnel are not exempt from this law, even if they carry weapons when they are on duty. Questions about this policy should be directed to local branches of the Alcohol, Tobacco and Firearms (ATF) Office.
It is illegal for a person to possess a firearm while subject to a court order restraining such a person from harassing, stalking or threatening an intimate partner or the child of an intimate partner (18 U.S.C. 922 (g) ). It is also illegal to transfer a firearm to a person subject to a court order that restrains such a person from harassing, stalking, or threatening an intimate partner or the child of an intimate partner (18 U.S.C. 922 (d) ).
As of September 30, 1996, it is illegal to possess a firearm after CONVICTION of a misdemeanor crime of domestic violence. This prohibition applies to persons convicted of such misdemeanors at any time, even if the conviction occurred prior to the new law's effective date (18 U.S.C. 922, (g) ).
Further, The GUN CONTROL Act of 1994, which was amended in 1996, also makes it illegal to possess a firearm and/or ammunition if the individual is subject to an order of protection or if the individual has been convicted of a misdemeanor domestic assault.
Domestic situations may also involve stalking of the victim by the estranged partner. Stalking usually involves repeated threatening or harassing behaviors, such as phone calls, following or shadowing a person, appearing at a person's home or place of employment, vandalizing property, and any other activity that makes a person fear for his or her safety. Stalking laws vary greatly from state to state, with some requiring a minimum of two acts or other proof that the event was not an isolated occurrence, and others specifying that the threat of harm must be imminent. Some states also include activities such as lying-in-wait, surveillance, and non-consensual communication.
In its 1998 research on state codes and stalking, the National Institute of Justice defined stalking as "a course of conduct directed at a specific person that involves repeated visual or physical proximity, nonconsensual communication, or verbal, written, or implied threats, or a combination thereof, that would cause a reasonable person fear," with repeated meaning on two or more occasions. There are three types of stalking: erotomania, which is often committed by a female and is a delusional obsession with a PUBLIC FIGURE or someone out of the stalker's reach; love obsessional, which involves individuals' stalking someone with whom they think they are in love; and simple obsessional, which is stalking by someone the victim knows. Domestic violence stalking fits into this last category and is usually perpetrated by an ex-spouse or lover, employer or co-worker.
The following examples of state legislation on stalking illustrate differences in definitions of and punishment for stalking.
DISTRICT OF COLUMBIA: Stalking refers to more than one incident of willfully, maliciously, and repeatedly following or harassing or without a legal purpose, willfully, maliciously, and repeatedly following or harassing another person with the intent of causing emotional distress or creating reasonable fear of death or bodily injury. Harassment refers to engaging in a course of conduct either in person, by telephone, or in writing, directed at a specific person, which seriously alarms, annoys, frightens, or torments the victim or engaging in a course of conduct either in person, by telephone, or in writing, which would cause a reasonable person to be seriously alarmed, annoyed, frightened, or tormented. Such an offense can be punishable by a fine of not more than $500 or IMPRISONMENT of up to 12 months or both (Title 22, Section 504). A second offense occurring within two years can result in a fine of up to $750 and/or imprisonment for up to one and a half years. A third offense is punishable by a fine of not more than $1500 and/or imprisonment for up to three years.
TENNESSEE: (a)(1) A person commits the offense of stalking who intentionally and repeatedly follows or harasses another person in such a manner as would cause that person to be in reasonable fear of being assaulted or suffering bodily injury or death.
- "Follows" means maintaining a visual or physical proximity over a period of time to a specific person in such a manner as would cause a reasonable person to have a fear of an assault, bodily injury, or death;
- "Harasses" means a course of conduct directed at a specific person, which would cause a reasonable person to fear a sexual offense, bodily injury, or death, including, but not limited to, verbal threats, written threats, VANDALISM, or physical contact that was non-consensual;
- "Repeatedly" means on two (2) or more occasions.
(b) (1) Stalking is a Class A misdemeanor.
In Tennessee, if there is a subsequent violation of this law within a seven-year period, the offense becomes a class E felony. A subsequent violation denotes a class C felony.
Battered Women's Syndrome
A phenomenon which has received much attention in the realm of domestic violence and particularly with women who kill is battered women's syndrome (BWS), which is a subcategory of post-traumatic stress disorder (PTSD). According to Walker, battered women's syndrome is:
A group of usually transient psychological symptoms that are frequently observed in a particular recognizable pattern in women who report having been physically, sexually, and/or seriously psychologically abused by their male domestic partners.
BWS develops as a battering relationship unfolds. This is typically a three-stage process that includes:
1) small incidents of verbal and minor physical abuse that begin infrequently but increase in frequency; 2) actual acute battering that often causes serious injury needing medical attention; and 3) a cycle where the abuser is contrite to the abused and ultimately teaches the abused to be submissive and passive toward further abuse.
A woman displaying symptoms of BWS may be apathetic toward subjects or activities for which she used to be enthusiastic, she may become involved in drug or alcohol abuse, and she may also experience completely different attitudes and emotions toward her spouse than she did before the abuse began. The importance in knowing about BWS lies in recognizing predictable, psychological effects caused by domestic violence. BWS is now recognized in legislation by many states and is considered when defending battered wives who kill their spouses. BWS is not used as a defense but more as an indication of the defendant's state of mind or as a mitigating circumstance. A reasonable fear of imminent danger (especially used in SELF-DEFENSE) can be proven using BWS.
Identifying Signs of Domestic Violence
Montgomery County (MD) Sheriff's Department suggests that the following behaviors may indicate domestic violence to a police officer or dispatcher:
- The victim is very fearful of the partner;
- The victim states that the partner is extremely jealous;
- The victim describes the relationship as full of conflict;
- The victim makes references to being forced to have sexual relations with the partner;
- The victim states police have often been called to the home;
- The victim states that the partner controls everything the victim does.
Police and attorneys should recommend the victim apply for an order of protection if the victim has been abused or threatened, and if either of the following is present:
- The victim fears further abuse;
- The victim needs the abuser out of the home in order to protect herself and/or her family;
- The abuser has threatened to take the children;
- The victim cannot or does not wish to file criminal charges;
- The victim wants the abuser to attend a counseling program;
- The victim wants a period of separation from the abuser but is unsure whether to file for DIVORCE or CUSTODY yet;
- Criminal charges are pending and the victim fears for her safety;
- The victim's children have been abused.
The Battered Woman Syndrome. Leonore E. Walker, Springer, 1984.
The Federal Domestic Violence Laws and the Enforcement of These Laws. Margaret S. Groban, Violence Against Women On Line Resources, 2001.
The Impact of Arrest on Domestic Violence. Eva S. Buzawa and Carl G. Buzawa, American Behavioral Scientist, 1993, 558-574.
Police Responses to Wife Beating: Neglect of a Crime of Violence. Stephen E. Brown, Journal of Criminal Justice (1984) 277-288.
The Scientific Evidence Is Not Conclusive: Arrest Is No Panacea. Eva S. Buzawa and Carl G. Buzawa. Chapter
21. Issues in Social Intervention. Sage Publications, 1993.
Stalking and Domestic Violence: The Third Annual Report to Congress under the Violence Against Women Act. Office of Justice Programs, U. S. Department of Justice, 1998. Available online at: http://www.ojp.usdoj.gov/vawo/grants/stalk98/welcome.html.
Victimology and the Psychological Perspectives of Battered Women. Lenore E. Walker, Victimology: An International Journal, 8 (1/2), 82-104.
Violence Against Women. Bureau of Justice Statistics, U. S. Department of Justice, January 1994.
Violence Against Women Act of 1994. Available on-line at http://www.ojp.usdoj.gov/vawo/laws/vawa/vawa.htm.
Violence by Intimates: Analysis of Data on Crimes by Current or Former Spouses, Boyfriends, and Girlfriends.
U. S. Department of Justice, March 1998.
American Bar Association Commission on Domestic Violence
740 15th Street NW
Washington, DC 20005-1022 USA
Family Violence Department of the National Council of Juvenile and Family Court Judges
P.O. Box 89507
Reno, NV 89507 USA
Family Violence Prevention Fund
383 Rhode Island Street, Suite 304
San Francisco, CA 94103-5133 USA
Phone: (415) 252-8900
Fax: (415) 252-8991
Immigrant Women Program of NOW Legal Defense Fund
1522 K St., NW
Washington, DC 20005 USA
Phone: (202) 326-0004
National Coalition Against Domestic Violence
1532 16th St., NW
Washington, DC 20036
Phone: (202) 745-1211
Fax: (202) 745-0088
National Domestic Violence Hotline
P.O. Box 161810
Austin, TX 78716 USA
Safe Work Coalition
395 Hudson Street
New York, NY 10014 USA
Phone: (212) 925-6635
Fax: (212) 226-1066
Emancipation (Encyclopedia of Everyday Law)
Historically, parents are responsible for their children. They are also required to feed, clothe, educate, and act in their children's best interest until they reach the "age of majority" or the age in which, for most purposes, the children are considered to be adults. State law can allow a minor to ask a state court to determine that the minor is able to assume adult responsibilities before reaching the AGE OF MAJORITY. The term, EMANCIPATION refers to the point at which a minor becomes self-supporting, assumes adult responsibility for his or her welfare, and is no longer under the care of his or her parents. Upon achieving emancipation, the minor thereby assumes the rights, privileges, and duties of adulthood before actually reaching the "age of majority" (adulthood). At that point, the minor's parents are no longer responsible for that child and, also, have no claim to the minor's earnings. During the court proceedings and before granting emancipation, the court considers, primarily, the best interests and level of maturity of the minor and confirms that the minor is able to financially support him or herself.
However, even when minors achieve emancipation, they cannot take part in any activity such as purchasing and/or drinking alcohol, voting, or getting married which, by STATUTE, may require that the participant have attained an older age.
Close to half of the states, including New York and Pennsylvania, provide no separate STATUTORY provisions for emancipation. Instead, these states rely on the fact that emancipation is automatically achieved upon a minor getting married, joining the armed forces, or reaching the age of majority which is now lower (usually eighteen years of age) than what was once commonly mandated as twenty-one years of age.
Generally, the statutory age in which a minor can petition a court for emancipation is at least sixteen years or older but below the age of majority (which among the vast majority of states is eighteen years of age). California allows a minor of the age of fourteen to petition its courts for emancipation.
Even though minors may be under the age of majority, certain actions on their part will cause them to be emancipated from their parents' care and control even without seeking a court order. These actions are usually limited to the following:
- Joining the armed forces
- Getting married
- Reaching the actual age of majority (which is usually eighteen years of age)
The state of Michigan also allows for a temporary automatic emancipation when minors are in police CUSTODY and emergency medical care is required. The minors are considered emancipated and allowed to consent to such care. This emancipation ends when the medical care or treatment is completed.
Petition to Courts
Minors petitioning their state courts for emancipation from their parents' care and control are normally required to prove their age and that they are residents of the state where the petition is being filed. They must tell the court why they seek emancipation. Parents must be given notice of the proceeding. Also, the minors must show the court that they are of sufficient maturity to care for themselves. This means that they are able to support themselves financially, provide for their own shelter, and make decisions on their own behalf. Some states require that the minors already support themselves and live totally or partially on their own. Most statutes exclude state financial support or "general assistance" when determining minors' ability to support themselves.
The court then looks at all the EVIDENCE in order to determine whether emancipation is in the minor's best interest. Also, since an order for emancipation must be in the minor's best interest, if the minor's situation changes, such an order may be rescinded by the court and the minor declared to be returned to the parents' care and control. The state of Illinois allows for court decrees of "partial" emancipation, where the court clearly states the limits of emancipation, if such an order is in the best interests of the minor.
States with no statutory provision or procedures for minors to apply for emancipation may still determine or confirm that minors have been emancipated. Minors file a petition with the court and provide the information necessary (such as proof of financial independence, adequate housing arrangements, and sufficient maturity) for the court to determine that such a confirmation of emancipation from parental care and control is in the best interests of the minor.
Criteria for Emancipation
Criteria for determining whether a DECREE declaring emancipation is in the minor's best interest vary among the states. However, certain criteria can commonly be found:
- The minors' ability to support themselves financially, either currently or in the future
- The minors are currently living apart from their parents or have made adequate arrangements for future housing
- The minors can adequately make decisions for themselves
- The minors are attending school or have already received a diploma
- The minors exhibit sufficient maturity to function as adults
Rights, Privileges, and Duties Inherent in Emancipation
Once declared to be emancipated, minors have the same rights, privileges, and duties in society as adults. Although the specific aspects vary among the states, generally, emancipated minors can do the following:
- Enter into contracts and leases
- Be a party to a law suit, either as a plaintiff or a DEFENDANT, in their own name
- Buy or sell real estate or other property
- Write a valid will
- Inherit property
- Enroll in school
- Get married
- Agree to various types of medical treatments
Emancipated minors can also vote and obtain a driver's license but only if they are of sufficient age to do so.
Examination of Certain State Provisions on Emancipation
Of the states with specific emancipation provisions, some of the more significant state requirements include the following:
ALABAMA: In Alabama, the age of majority is nineteen. The Alabama code describing the emancipation procedure is designed to expand the rights of minors over the age of 18 but under the age of majority. Parents can file an emancipation petition with the court or the minor seeking emancipation can file the petition if that minor has no parents or if a living parent is insane or has abandoned the minor. The court will then decide if a decree of emancipation is in the "interest of such minor."
CALIFORNIA: In California, the age of majority is eighteen. Minors are considered emancipated without court intervention if they are married, are a member of the armed forces, or have previously been declared emancipated by a California court. Otherwise, in order to seek court mandated emancipation, the minors must be no younger than fourteen years old, be already living apart from their parents, be able to demonstrate the ability to take adequate care of themselves financially, and not receive any income from illegal or criminal activity.
If the court grants the order of emancipation, the minor then has the privilege and right to: sign contracts; approve medical care; buy, LEASE, and sell real property; be the plaintiff or defendant in a law suit; write a will; live in their own home; go to school and get a work permit. If the minor's situation changes, the court has the ability to end the emancipation and advise the minor's parents that they are once again responsible for the minor.
FLORIDA: The age of majority in Florida is eighteen. In order to seek a court mandated emancipation, minors must submit a statement of "character, habits, income, and mental capacity for business, and an explanation of how the needs of the minor with respect to food, shelter, clothing, medical care, and other necessities will be met." In addition, minors must state whether they are party to any court action taking place in Florida or another state. Minors must also submit a statement explaining why they seek an order of emancipation. Parents must be notified of any such proceeding.
The court then asks for any additional evidence to determine if the decree of emancipation is in the minors' best interest. If the order of emancipation is granted, the minor will have all of the rights, responsibilities, and privileges of anyone who has reached the age of majority (eighteen years of age).
ILLINOIS: The age of majority in Illinois is eighteen. The Illinois statute allows the court to give an order of emancipation to a "mature minor who has demonstrated the ability and capacity to manage his (or her) own affairs and to live wholly or partially independent of his (or her) parents." The Illinois statute also seeks to tailor the content of the emancipation order to fit the needs of the minor seeking the order.
The statute states that for an order of emancipation from the court to be valid, neither the parents nor the minor can offer any objections. Also, the court will examine the situation and determine whether a full or partial order of emancipation will be given. Also, once the emancipation order is entered, the court will determine what adult privileges and rights, in addition to the right to enter into contracts, will be given the minor. Only those rights listed in the order will be in effect for that minor.
In order to seek a court mandated emancipation order, the minor must be at least sixteen years old but under eighteen years old. The minor must confirm that he or she lives in Illinois, explain why he or she wants a complete or partial order or emancipation, demonstrate that he or she is a "mature minor," and show that he or she has lived on their own.
MICHIGAN: The age of majority in Michigan is eighteen. The Michigan statute defines emancipation as the "termination of the rights of the parents to the custody, control, services and earnings of a minor." Absent an order of emancipation, the statute confirms that parents are responsible for supporting their minor children. In fact, one or both parents can object to the emancipation proceedings. In that case, the court may decide to dismiss the proceedings.
The Michigan statute states the four ways that a minor can be emancipated without a court order as being by marriage, reaching the age of majority (eighteen years of age), joining the armed forces, and temporarily while in police custody in order to consent to needed medical treatment.
The statute requires the petition to the court to be brought by the minor. The minors must submit information showing that they can take care of themselves financially, without seeking assistance from the state of Michigan. Minors must also show the court that they can take care of their other personal needs as well. The petition to the court must include a statement from an adult sufficiently familiar with the minor that the individual can offer information that explains to the court why emancipation is "in the best interest of the minor."
At this point, the court may seek additional information and may ask someone from the court staff to investigate the situation further and report back to the court. The court then determines if an order of emancipation is in the minor's best interests.
If the minor is emancipated, the adult rights and responsibilities applicable to the minor do not include those limited by age and by law such as using and purchasing alcohol and voting. However, they do include signing contracts, being a plaintiff or defendant to a law suit, keeping whatever money the minor earns, living away from the parents, approving health care and medical procedures, getting married, writing a will, and enrolling in school.
If the minor's circumstances change, the emancipation order can be rescinded by the court. If that happens, the parents "are not liable for any debts incurred by the minor during the period of emancipation."
NORTH CAROLINA: The age of majority in North Carolina is eighteen. A minor must be at least sixteen years of age in order to seek an order of emancipation from the court. The court will consider several factorsncluding the parents' need for the minor's earnings as well as the minor's ability to accept adult responsibilitiesn determining the best interests of the minor.
If the emancipation is granted, the minor will have the adult rights to sign contracts, take part in law suits, and conduct other adult-related business. The parents' duties of support to the minor are thereby ended.
OREGON: The age of majority in Oregon is eighteen. A minor must be sixteen years of age to seek an order of emancipation from the court. The minor must show that they can support him or herself and otherwise assume adult responsibilities. If the court determines that an order of emancipation is in the best interests of the minor, then the minor "has all of the rights and is subject to all liabilities of a citizen of full age."
A minor must be at least sixteen years old in order to seek an order of emancipation from the court. Minors are considered to be emancipated without a court order if they are married or have entered the armed forces. In order for the court to consider making an order of emancipation, the minors must have already lived separately from their parents, successfully taken care of their own finances, shown that they can take care of other personal business, either have received a high school diploma or are working toward one, and not be a ward of the social services or corrections department.
WEST VIRGINIA: A minor must be at least sixteen years old in order to seek an order of emancipation from the court. Minors must also show the court that they can provide for themselves and their "physical and financial well-being and has the ability to make decisions" for themselves. If an emancipation order is entered, minors have the rights and privileges of adults.
http://www.law.cornell.edu/topics/Table_Emancipation.htm. "Laws of the Fifty States, District of Columbia and Puerto Rico Governing the Emancipation of Minors," Legal Information Institute, January 9, 2002. Available at: http://www.law.cornell.edu/topics/Table_Emancipation.htm
West's Encyclopedia of American Law. West Group, 1998.
Focus Adolescent Services
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Phone: (877) 362-8727
Primary Contact: Linda Lebelle, Director
Legal Information Institute
Myron Taylor Hall
Ithaca, NY 14853 USA
URL: http://www.law.cornell.edu/topics/Table_ Emancipation.htm
Northwest Justice Project (NJP)
401 Second Avenue South, Ste. 407
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Family Planning/Abortion/Birth Control (Encyclopedia of Everyday Law)
Family planning involves decisions made by women and men concerning their reproductive lives and whether, when, and under what circumstances they have children. Family planning most often involves the decisions of whether to engage in sexual activity that could lead to pregnancy, whether to use BIRTH CONTROL, and whether to terminate a pregnancy. Individuals faced with these decisions often rely on moral or religious beliefs. Because moral and religious beliefs vary widely in the United States, family planning laws are frequently controversial.
During the nineteenth century in the United States, birth rates began to decline, in part due to an increase in scientific information about conception and contraception, or birth control. The average white woman in 1800 gave birth seven times; by 1900, that number dropped to an average of three- and-a-half. At the beginning of the nineteenth century, early stage abortions generally were legal. The use of birth control and ABORTION, however, declined as growing public opinion considered information about birth control methods to be obscene and abortion to be unsafe.
Birth control is any method used to protect a woman from getting pregnant. Beginning in the 1800s, laws in the United States prohibited birth control, when temperance and anti-vice groups advocated outlawing birth control devices and information about birth control devices. These groups considered birth control information to be obscene, a belief that was popular enough that in 1873, Congress passed the Comstock Act outlawing the dissemination of birth control devices or information through the mail. Most states followed suit by passing their own laws outlawing the advertising, sale, and distribution, of contraception.
The turn of the century brought increasing attention to issues involving women's rights. Margaret Sanger, a strong advocate of birth control, opened the country's first birth control clinic in New York City in 1916 and was prosecuted for violating New York's version of the Comstock Act. She served a 30-day sentence in a workhouse but later established the National Committee for Federal Legislation for Birth Control. Sanger proposed a federal bill that outlined the health and death risks to women who underwent illegal abortions or who completed unwanted pregnancies. The bill sought to reverse the federal position prohibiting birth control, but under pressure from religious groups such as the Catholic Church, Congress did not pass Sanger's bill.
Sanger then sought to challenge the Comstock Act by sending contraception through the mail to a doctor. Her actions were prosecuted, but she achieved her goal when a federal district court deemed that the Comstock Act did not prohibit the mailing of contraceptives when such an act could save a life or promote the health of a doctor's patients. Sanger continued to lead a growing national movement advocating more information and access to birth control, and in 1921 she founded the American Birth Control League.
In 1942, the American Birth Control League became the Planned Parenthood Federation of America, still in existence today. Planned Parenthood advocates for a range of safe, legal, and accessible birth control options. In the 1950s, Sanger and Planned Parenthood supported the research efforts of Dr. Gregory Pincus that led to the development of the birth control pill. The birth control pill revolutionized family planning, and by the 1960s popular opinion was shifting in favor of making contraception and information about contraception readily available.
By the 1950s and 1960s, most states had legalized birth control, but many state laws still prohibited the dissemination of information about contraception, and some states still prohibited the possession of contraception. A 1965 landmark Supreme Court decision further eroded these laws sanctioning birth control. In Griswold v. Connecticut, the Court addressed the prosecution of a Planned Parenthood executive director charged with violating a Connecticut state law that prohibited the distribution of contraceptives, information about contraceptives, and prohibited the possession of contraceptives. The Court found that although the U. S. Constitution does not explicitly offer a right to privacy, that right can be inferred from the language in various sections of the BILL OF RIGHTS. The Constitution therefore does contain what the Court called a "zone of privacy." Connecticut's STATUTE violated that zone of privacy in the realm of marriage because it permitted police officers to search the bedroom of a married couple for EVIDENCE of contraception. The Court deemed this action to be overly intrusive and an unconstitutional violation of the right to marital privacy, and it threw out the Connecticut law insofar as it applied to married couples.
In 1966, the federal government, with an endorsement by U. S. President Lyndon B. Johnson, began public funding of contraception services for low-income families. President Richard M. Nixon in 1970 signed into law an act promoting research of population and family planning issues. Finally, in 1971, Congress repealed the key elements of the Comstock Act.
Some states, however, kept birth control laws despite the REPEAL of the federal Comstock Act. In 1972, the Supreme Court found unconstitutional a Massachusetts law that only permitted married couples to receive contraception. The Court found this law to violate the EQUAL PROTECTION rights of single persons. In 1977, the Court addressed a New York state law that permitted only physicians to distribute contraceptives to minors under the age of sixteen, and only physicians or pharmacists to distribute contraceptives to adults. The Court struck down this law as well. It became clear that the Supreme Court viewed as constitutionally protected the right of an individual, married or unmarried, to make personal decisions regarding whether to have children.
Abortion occurs when an embryo or fetus is expelled from a woman's body. Abortions can be spontaneous or induced. In the legal context, discussions about abortions usually involve induced, or intentional, abortions.
Before the United States became a country, the COMMON LAW of England permitted abortions before the fetus "quickened." Quickening was the term used to describe the mother's first feeling of the fetus moving in her uterus. Typically, quickening occurs between the sixteenth and eighteenth weeks of pregnancy.
After the founding of the United States, laws regarding abortions did not exist until the 1800s. Women at that time were not allowed to vote and were not allowed to be doctors or members of the American Medical Association, which, along with religious leaders, advocated the passage of laws outlawing abortion. Abortions in the nineteenth century were generally unsafe, and women who survived abortions frequently were left sterile. By the 1880s, all states had laws criminalizing abortions. These laws stayed on the books until the 1960s and 1970s.
Beginning in the mid-twentieth century, women's groups, along with doctors and lawyers, organized a movement to reform abortion laws. Reformers cited inequalities between men and women that were exacerbated by women's inability to adequately control their reproductive lives. The post World War II population explosion also increased awareness about the environment and the need to limit family size. In other countries, abortions were legal and generally safe, but in the United States, women continued to undergo illegal abortions and risk permanent injury or death. In the 1960s, the anti-nausea drug thalidomide and an outbreak of German measles caused a rash of birth defects in babies born during that decade. The increase in birth defects brought further attention to the issue since women wishing to avoid the birth of a seriously deformed child could not seek legal abortions.
Women's rights organizations, including the National Organization for Women (NOW), lobbied for abortion law reform and filed lawsuits when LOBBYING efforts failed. States responded, reforming their laws about abortion, but women's rights groups continued to fight for unfettered access to abortion services for women. Anti-abortion groups fought back, arguing that a woman's right to reproductive freedom is no greater than the right of an unborn child to be born. The battle ultimately went before the U. S. Supreme Court, which in 1973 decided the landmark abortion case of ROE v. Wade.
Roe v. Wade
Jane Roe was a pseudonym for Norma McCorvey, an unmarried pregnant Texas woman who sought an abortion but was denied under Texas law. Roe, with the help of attorneys, filed a federal lawsuit seeking to have the Texas law thrown out as unconstitutional. She argued that a law prohibiting her from obtaining an abortion violated her constitutional right to privacy. The Supreme Court, voting 7-2, agreed with Roe that the law criminalizing abortion violated her right to privacy. But the Court held that states do have an interest in ensuring the safety and well-being of pregnant women as well as the potential of human life. Acknowledging that the rights of pregnant women may conflict with the rights of the state to protect potential human life, the Court defined the rights of each party by dividing the pregnancy into three 12-week trimesters. During a pregnant woman's first trimester, the Court held, a state cannot regulate abortion beyond requiring that the procedure be performed by a licensed doctor in medically safe conditions. During the second trimester, the Court held, a state may regulate abortion if the regulations are reasonably related to the health of the pregnant woman. During the third trimester of pregnancy, the state's interest in protecting the potential human life outweighs the woman's right to privacy, and the state may prohibit abortions unless abortion is necessary to save the life or health of the mother. The Court further held that a fetus is not a person protected by the constitution.
After Roe v. Wade
Roe v. Wade established the limited right of a woman to have an abortion. Recognizing that fact, states liberalized their abortion laws following the Supreme Court's decision, but abortion soon became an even more divisive issue in the United States. Groups opposed to abortion, including the Catholic Church, became organized and politically powerful. The issue of abortion became a platform issue for all candidates for federal office, including the office of the U. S. president. During the 1980s, President Ronald Reagan, an opponent of abortion, used his presidency to argue for a reversal of Roe v. Wade. He appointed C. Everett Koop, another abortion opponent, to the position of surgeon general and referred to abortion as a "silent holocaust." Reagan believed that abortion caused pain to the fetus and that the rights of the fetus were not outweighed by the rights of the pregnant woman.
Groups opposed to abortion, known as pro-life groups, have worked in various ways to reduce or eliminate entirely abortions in the United States. These groups have sponsored legislation limiting access to abortion and have attempted unsuccessfully to reverse Roe v. Wade by way of a CONSTITUTIONAL AMENDMENT. Some groups opposed to abortion attempt to persuade patients not to undergo abortions by demonstrating outside of abortion clinics. In some extreme cases, individuals and groups opposed to abortion have bombed abortion clinics, injuring and killing patients and staff members, or have murdered doctors who provide abortions. Because of these extreme actions, many doctors are unwilling to perform abortions and many abortion clinics have shut down, making access to abortion difficult in some regions.
Other attempts to reduce the number of abortions have involved eliminating public funding of abortions and even prohibiting health care clinics that receive public funding from counseling women about the option of abortion. Soon after taking office in 1993, President Bill Clinton effectively reversed federal regulations that prohibited staff members at health care clinics that receive public funding from dispersing information about abortions or referring women to abortion providers. Once this so-called "gag rule" was lifted, these clinics once again were able to give women information about abortion.
Also complicating the issue of abortion rights are rules requiring a woman to get INFORMED CONSENT or parental consent. Informed consent involves a requirement that before undergoing an abortion, the abortion provider must give the woman information about the risks of abortion, alternatives to abortion, the age of the fetus, and the availability of government assistance for carrying the pregnancy to term. Parental consent involves a requirement that a minor wishing to undergo an abortion first obtain consent from her parent or GUARDIAN. The Supreme Court generally has upheld parental consent laws provided the laws allow a minor the ability to obtain permission to have an abortion from a judge rather than a parent and provided that the judge's decision take into account the minor's best interests, maturity, and ability to make decisions. The Supreme Court generally has upheld laws requiring the notification, as opposed to consent, of parents of minors seeking to undergo an abortion. The Supreme Court generally has upheld informed consent laws so long as the laws do not create an undue burden on the woman seeking an abortion. The Supreme Court has not upheld laws requiring a woman to obtain her spouse's permission before undergoing an abortion.
Laws regarding the right to undergo an abortion continue to evolve. The pro-choice movement and the anti-abortion movement battle aggressively to protect their causes, and the issue remains deeply mired in differing opinions about ethics, religion, and medical science. There is little question that abortion will remain a divisive and powerful political issue in decades to come.
Reproductive Health Online. Johns Hopkins University, 2001. Available at: www.reproline.jhu.edu.
West's Encyclopedia of American Law. West Group, 1998.
Feminists for Life
733 15th Street, NW
Washington, DC 20005 USA
Phone: (202) 737-FFLA
Planned Parenthood Federation of America
810 Seventh Avenue
New York, NY 10019 USA
Phone: (212) 541-7800
National Abortion and Reproductive Rights Action League (NARAL)
1156 15th Street Suite 700
Washington, DC 20005 USA
Phone: (202) 973-3000
National Right to Life Committee
512 10th Street, NW
Washington, DC 20004 USA
Phone: (202) 626-8800
Foster Care (Encyclopedia of Everyday Law)
Children in foster homes is a concept which goes as far back as the Old TESTAMENT, which refers to caring for dependent children as a duty under law. Early Christian church records indicate orphaned children lived with widows who were paid by the church. English Poor Laws in the 1500s allowed the placement of poor children into indentured service until they became adults. This practice was imported to the United States and was the beginning of placing children into foster homes. Even though indentured service permitted exploitation, it was an improvement over almshouses where children did not learn and were exposed to unsanitary conditions and abusive caretakers.
In 1853, Charles Loring Brace, a minister, founded the Children's Aid Society. Brace saw many immigrant children sleeping in the streets. He located families in the West willing to provide free homes for these children. These children were sent by train to these families and were often required to work long hours. Nevertheless, Brace's system became the foundation for today's foster care movement.
In the 1900s, social agencies began to pay and supervise foster parents. The government began state inspections of foster homes. Services were provided to natural families to enable the child to return home and foster parents were now seen as part of a team effort to provide for dependent children.
Federal Child Welfare Programs Today
The Social Security Act contains the primary sources of Federal funds available to States for child welfare, foster care, and ADOPTION activities. These funds include both nonentitlement authorizations (for which the amount of funding available is determined through the annual appropriations process) and authorized entitlements (under which the Federal Government has a binding obligation to make payments to any person or unit of government that meets the eligibility criteria established by law). Family preservation services are intended for children and families, including extended and adoptive families, that are at risk or in crisis. Services include: programs to help reunite children with their biological families, if appropriate, or to place them for adoption or another permanent arrangement; programs to prevent placement of children in foster care, including intensive family preservation services; programs to provide follow-up services to families after a child has been returned from foster care; respite care to provide temporary relief for parents and other care givers (including foster parents); and services to improve parenting skills. The Foster Care Program is a permanently authorized entitlement that provides open-ended matching payments to States for the costs of maintaining certain children in foster care, and associated administrative, child placement, and training costs.
Foster Care Funding
The Federal government provides funds to States to administer child welfare programs. State grant programs have their own matching requirements and allocations, and all require that funds go to and be administered by State child welfare agencies, or in some programs, Indian Tribes or Tribal organizations. In most states foster children are eligible for MEDICAID cards which cover medical, dental, and counseling services. Foster parents receive reimbursement for the child's food and clothing. Some states provide a clothing VOUCHER at the time of the child's first placement. Others provide clothing vouchers at the beginning of each school year. Foster children have the same minimum health benefits as children in the Aid to Families with Dependent Children (AFDC) program. Most Federal funds for AFDC and foster children's health care come through Federal Medicaid (Title XIX of the Social Security Act).
As wards of the state, foster care children are dependent on government-funded health services. As a group, children in foster care suffer high rates of serious physical or psychological problems. Nearly half of these children suffer from chronic conditions such as asthma, cognitive abnormalities, visual and auditory problems, dental decay and malnutrition, as well as birth defects, developmental delays or emotional and behavioral problems. Over half require ongoing medical treatment. Studies indicate that well over half have moderate to severe mental health problems. These conditions stem from exposure to alcohol and drugs, lack of medical care, poor parenting, DOMESTIC VIOLENCE, neglect, and unstable living conditions prior to family removal. The trauma of family separation, frequent moves, and the stress and disruptions brought about by impermanent placements in the foster care system aggravate the situation. Children in foster care typically suffer serious health, emotional, and developmental problems.
Children With Disabilities
Children with disabilities sometimes enter foster care because their parents have not received the type or level of support to meet their needs. In many cases, parents must work and responsible after-school childcare is not available. Sometimes the parents become overwhelmed with the needs of the disabled child and the demands of other children in the family. Children with disabilities are abused at a high rate. Their parents are often frustrated with their children's disabilities or with their own inability to help them. Disabled girls are more often sexually abused that other girls. Children with developmental disabilities have a hard time explaining what happened to the social worker or police. In foster homes, the foster parents are trained to care for these children and given support within the dependency system.
Aging Out of Foster Care
Children age-out of foster care at age 18 or when they graduate from high school, whichever happens first. This event is referred to as EMANCIPATION. Some maintain a continuing relationship with their foster families while others do not. Many face a difficult future when state and federal funding ends, and housing, food, and medical care stops.
The John H. Chafee Foster Care Independence Program (CFCIP), Title I of the Foster Care Independence Act of 1999, provides funds to states to assist youth and young adults (up to age 21) in the foster care component of the child welfare system make a smoother, more successful transition to adulthood. This recent program replaces and expands the Social Security Act and allows states to use these funds for a broader array of services to youth "aging out" of the foster care system, including room and board. Most importantly, the Chafee program enables states to expand the scope and improve the quality of educational, vocational, practical, and emotional supports in their programs for adolescents in foster care and for young adults who have recently left foster care.
Many children become participants in the Foster Care system due to neglect or abuse by their primary caretakers. Investigations by child protective services (CPS) agencies in all States determine that close to a million children are victims of child maltreatment every year. More than half of all reports alleging maltreatment came from professionals, including educators, law enforcement and justice officials, medical and mental health professionals, social service professionals, and CHILD CARE providers. Federal agencies have no authority to intervene in individual CHILD ABUSE and neglect cases. Each State has JURISDICTIONover these matters and has specific laws and procedures for reporting and investigating. Individual States have a Child Protective Services agency set up to investigate complaints and allegations. In some States, all citizens are mandated reporters by State law and must report any suspicion of child abuse or neglect.
More children suffer neglect than any other form of maltreatment. Investigations determined that about half of children victimized suffered neglect, 22 percent physical abuse, 12 percent SEXUAL ABUSE, 6 percent emotional maltreatment, 2 percent medical neglect, and 25 percent other forms of maltreatment. Some children suffer more than one type of abuse. Unfortunately, maltreatment is rarely the only issue of families who enter into the child welfare system. Substance abuse and other addictions, serious physical or mental illness, domestic violence, and HIV/AIDS are often critical factors. Poverty is pervasive, and inadequate or unsafe housing are significant problems. These serious difficulties can result in extremely complex family situations that need multiple and coordinated services.
Foster Parent Requirements
Generally, foster parents must be over 21, have a regular source of income, have no record of FELONY convictions, submit to a home ASSESSMENT of all family members, and agree to attend parent training sessions. Foster parents can usually work outside the home, however, if the foster child requires day care, the foster parent is typically responsible for that expense. Foster parents need no make a certain minimum income, nor even own a large home. Foster children can usually share a bedroom with another child of the same sex. Both single persons and married couples are generally accepted as foster parents, however, some states do not certify homes in which unmarried adults are living together unless they are relatives.
The length of time a child may remain in foster care varies. The Adoption and Safe Families Act of 1997 requires states to seek a permanent placement for the child as quickly as possible, be it reunification with the birth parents, kinship care, or adoption.
Group homes have a history of being problematic in the Foster Care system. Initially, there was a shortage of experienced operators, the industry was unregulated, and a few took advantage of it. While many were run by competent social workers or those in religious communities who, though without formal training, were instrumental in having a positive impact on these children. Unfortunately, in others, children were abused, forced to participate in the beliefs of their caretakers. Sometimes untrained workers tried behavior modification techniques that were cruel and inhumane. With little monitoring by the government, it was possible to cut back on food, clothing, education and program to make a profit for the operators.
Group homes are now subject to a number of federal regulations. Any care facility that houses six or more children is considered a group home. Most group homes are small and try to integrate the children into the community. The residents attend local schools, are closely supervised, have a structured life, with a counselor on duty around the clock in most cases, and a schedule of counseling, tutoring, and other services.
Kinship care is the full time care of children by relatives, godparents, stepparents, or any adult who has a kinship bond with a child. The expansion of kinship foster care is, perhaps, the most dramatic shift to occur in child welfare practice over the past two decades. Informal kinship care is when a family decides that the child will live with relatives or other kin. In this informal kinship care arrangement, a social worker may be involved in helping family members plan for the child, but a child welfare agency does not assume legal CUSTODY of or responsibility for the child. Because the parents still have custody of the child, relatives need not be approved, licensed, or supervised by the state.
Formal kinship care involves the parenting of children by relatives as a result of a determination by the court and the child protective service agency. The courts rule that the child must be separated from his or her parents because of abuse, neglect, dependency, ABANDONMENT or special medical circumstances. The child is placed in the legal custody of the child welfare agency, and the relatives provide full time care. Formal kinship care is linked to state and federal child welfare laws. Federal legislation impacting kinship care includes The Adoption Assistance and Child Welfare Act of 1980, Title IV of the Social Security Act, and The Indian Child Welfare Act. Thus, kinship caregivers may be able to access Social Security Funds for the child, Temporary Assistance for Needy Families (TANF) funds for the child, and medical assistance for the child.
The Adoption and Safe Families Act
The Adoption and Safe Families Act of 1997 established time lines and conditions for filing termination of parental rights. The Act provides a new legislative framework that sets the direction and parameters for the operation of state and local child welfare agencies and courts. States must file a petition to terminate parental rights and concurrently, identify, recruit, process and approve a qualified adoptive family on behalf of any child, regardless of age, if the child has been in foster care for 15 out of the most recent 22 months. Exceptions can be made to these requirements if a relative is caring for a child. The Act requires notice of court reviews and an opportunity to be heard is sent to relatives, foster parents, and pre-adoptive parents. A relative, foster parent or pre-adoptive parent caring for a child must be given notice of an opportunity to be heard in any review or HEARING involving the child. This provision does not require that any relative, foster, or pre-adoptive parent be made a party to such a review or hearing. The Act also mandates that the Federal Department of Health and Human Services (HHS) complete a study on kinship care.
The Indian Child Welfare Act
The Indian Child Welfare Act (ICWA) of 1973 described the role that Native American families and tribal governments must play in decisions about the protection and placement of their children. It strengthened the role of tribal governments in determining the custody of Native American children and specified that preference should be given first to placements with extended family, then to Native American foster homes. The law mandated that state courts act to preserve the integrity and unity of Native American families.
Adoption of Foster Children
If a child has been in placement with a foster care family for a significant period of time and the parental rights of the natural parents have been terminated, the foster parents may seek an adoption under the state law.
Grandparents Raising Grandchildren: A Guide to Finding Help and Hope. Takas, Marianne, The Brookdale Foundation, 1995.
Relatives Raising Children: An Overview of Kinship Care. Crumbley, Joseph & Robert L. Little, Child Welfare League of America, 1997.
The Strengths of African American Families. Hill, Robert B., R & B Publishers, 1997.
Gay Couples (Encyclopedia of Everyday Law)
Within the already controversial realm of gay rights, no area is more controversial than gay marriage. For some, the idea that homosexual couples should have the same matrimonial benefits as heterosexual couples makes perfect sense: it is simply part of giving homosexuals equal rights and allowing them to reap the same rewards that accrue to married people. Others see the idea that homosexual unions be accorded identical respect and benefits as an abomination, a perversion of a status under the law that should only be granted to unions consisting of a man and a woman.
The debate over gay marriage is not confined to the sacrament of marriage itself, although being allowed to partake in that sacrament legally drives much of the emotionalism of the debate. It also has a more pragmatic side: whether same-sex couples should receive the same tax and estate advantages, the same rights to surviving children, the same COMMUNITY PROPERTY rights, and the same health care benefits as straight couples.
Although same-sex marriages have occurred privately for years, only recently was the idea they should be given the same status under the law as heterosexual marriages litigated. Only since 1993, with the Hawaii Supreme Court decision in Behar v. Lewin, have gay rights supporters seen any measurable progress on the state legal front concerning homosexual marriage. Since that decision, there have been steps forward and back on both sides in the battle for legalized same-sex marriage.
Same-sex marriages, unions between two members of the same sex in some sort of ceremony, religious or otherwise, existed for many years before the first case was filed to gain legal recognition of them. Generally, they were kept private, with knowledge limited to immediate friends and family members. The first lawsuit seeking to legalize a same-sex marriage was filed in 1971. Baker v. Nelson was inspired by the 1967 U. S. Supreme Court decision in Loving v. Virginia, invalidating a STATUTE prohibiting interracial marriage. But Jack Baker's attempt to gain legal status for his marriage to Mike McConnell was struck down by the Minnesota Supreme Court, which ruled that marriage was by definition between a man and a woman, and thus, unlike in Loving, there was no fundamental right to marry. Moreover, in 1974, the Washington Supreme Court determined that the state's EQUAL RIGHTS AMENDMENT could not be held to allow homosexuals the right to marry. The law protected only on the basis of sex, not sexual orientation.
Following these cases, all attempts failed to get a state or federal court to recognize the right of homosexuals to marry. There were decisions allowing unmarried partners to sue for enforcement of promises of support or financial sharing (so-called "palimony" cases), beginning with the landmark Marvin v. Marvin case involving actor Lee Marvin in California in 1976. Gays also attempted to form legal relationships by having one partner "adopt" the other. Some municipalities, beginning with Berkeley in 1984, adopted domestic partnership laws that extended some recognition and benefits of marriage to registered same-sex couples. But these acts were considered by gay activists to fall far short of granting marriage recognition to gay unions.
Baehr v. Lewin
In 1993, the Hawaii Supreme Court reached a surprising decision in Baehr v. Lewin. Ninia Baehr sued the state of Hawaii, charging its refusal to issue her and her same-sex partner a marriage license amounted to illegal DISCRIMINATION. In a PLURALITY decision, the Supreme Court said her case had merit. The Court ruled the state's prohibition of same-sex marriages amounted to discrimination on the basis of sex. Under the state's Equal Rights Amendment, the state would have to establish a compelling state interest supporting such a ban, a fairly strict standard. Although the court did not directly rule that the state's prohibition of same-sex marriages was illegal, it left little doubt of its skepticism regarding the proposition. The court remanded the case to a lower court to determine whether the state could prove this compelling state interest in prohibiting same-sex marriage.
For the first time, a state Supreme Court had ruled that gay couples might have the right to marry. Although its immediate impact was only in Hawaii, the decision heartened gay rights supporters and discouraged opponents throughout the country. One reason for these responses was Full Faith and Credit Clause of the United States Constitution which states "Full Faith and Credit shall be given in each state to the public Acts, Records and judicial Proceedings of every other state." The Clause requires states to grant full weight to legal actions in other states, including marriages, divorces, and other family-related situations. In effect, argued both opponents and proponents of gay marriage, the Full Faith and Credit Clause of the Constitution suggests that a legal marriage between a same-sex couple in Hawaii is a legal marriage everywhere else in the United States.
Spurred by the possibility the Hawaii Supreme Court would legalize gay marriages and that action might force other states to recognize them, opponents of same-sex marriages were mobilized. Yet some disagreed over whether Hawaii's potential legalization of gay marriage would necessarily overrule other states' anti-gay marriage laws. Nevertheless, anti-gay marriage legislation was passed on both the state and federal level.
The Defense of Marriage Act
In 1996, in response to the Baehr decision and resulting objections, the U. S. Congress passed the Defense of Marriage Act (DOMA). The act was designed to prevent the Full Faith and Credit Clause from being applied to states' refusal to recognize same sex marriages. It defines marriage as a union between a man and a woman only. The act also specifically denies federal benefits to same-sex couples. The act states that any federal law that applies to married couples does not apply to same-sex couple: STATUTORY and administrative use of terms such as "marriage" and "spouse" under federal law only apply to heterosexual couples. DOMA does not ban same-sex marriages in itself. Neither does it require any state to ban them. Rather, it states that "No state, territory or possession of the United States . . . shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such a relationship."
Since its passage, DOMA has never been tested under the Full Faith and Credit Clause. Some commentators believe that it would not survive scrutiny under that Clause. As of 2001, no state had legalized gay marriage. However, Vermont has legalized "civil unions" between same-sex couples but specifically does not call these "marriages".
Before the Hawaii court decided Baehr, every state had a ban on same-sex marriages. Since Baehr, 31 states have adopted additional laws that specify no recognition of those same-sex marriages which are legal in other states. These states, and the year they enacted non-recognition of same-sex marriage laws, are listed below.
NORTH CAROLINA: 1995
NORTH DAKOTA: 1997
SOUTH CAROLINA: 1996
SOUTH DAKOTA: 1996
Like DOMA, none of these state laws has been tested under the Full Faith and Credit Act.
One reason why neither DOMA nor any of the recently passed state non-recognition laws has been tested is the subsequent action in Hawaii. After the Hawaiian Supreme Court's decision in Baehr, the case moved slowly through the courts to determine whether the state had a compelling interest in banning same-sex marriages. In 1997, a Hawaiian Circuit Court judge determined the newly passed law still violated the state's Equal Rights Amendment and ordered the state to stop denying marriage licenses to same sex-couples. But in 1998, voters in the state changed the terms of the debate by adopting a CONSTITUTIONAL AMENDMENT allowing legislators to ban same-sex marriages, thus making the state's Equal Rights Amendment no longer applicable. In December, 1999, the Hawaiian Supreme Court determined that this new ban was effective and refused to recognize same-sex marriages in the state. As a result, no state has of this writing recognized same-sex marriages.
Baker v. Vermont
In 1999, the same year the Hawaiian Supreme Court refused to recognize same-sex marriages, the Vermont Supreme Court handed down its decision in Baker v. State. In that decision, the court said that same-sex couples must be granted the same benefits and protections that heterosexual couples received under state law. The court instructed the state legislator to determine how to grant homosexual couples those benefits and protections. It did not require the state to allow same-sex couples to be legally married but told the state legislator it had to find some way to treat those couples the same as if they were legally married.
The next year, the state passed a bill allowing same-sex couples to enter into "civil unions." Town clerks were authorized to give licenses to same-sex couples for these unions in the same way they would give out marriage licenses. They could be married by anyone authorized to perform marriages under state law and would have to DIVORCE under state law in the same way heterosexual couples would.
Same-sex couples in civil unions would be entitled to all the benefits available under state law to married couples, including medical decisions, estate INHERITANCE, overseeing burials, transferring properties, and certain tax breaks. Employers would have to treat civil union couples in the same way they treated other married couples, in matters including health benefits, marital status discrimination law, WORKERS' COMPENSATION benefits, TAXATION, family leave benefits and WAGE ASSIGNMENT laws. The Vermont civil union bill was a landmark in the fight over gay marriages. For the first time, a state was allowing gay couples to have the same benefits as married couples under state law. Because Vermont refused to label these unions as marriages, it is more unlikely that they will conflict with other states nonrecognition laws, although some commentators have suggested the Full Faith And Credit Clause might still apply.
Municipalities and Corporations
Municipalities have been generally more likely than states to grant same-sex couples the benefits of marriage than states. Since Berkeley passed the first domestic partnership law in 1984, approximately 60 cities and municipalities have enacted domestic partnership policies, including New York City and San Francisco. Although these policies do not legalize same-sex marriages (only the states can do that), they provide that same-sex couples will be treated the same as heterosexual couples under city ordinances and for such employment related purposes as health and DISABILITY benefits. Many CORPORATIONS, including companies such as Disney, Microsoft and IBM, also provide same-sex couples with the same benefits as married couples. This trend appears to be a growing.
"A Matter of Full Faith." ABA Journal, July, 1996.
The Case for Same-Sex Marriage: From Sexual Liberty to Civilized Commitment. Eskridge, William N., Jr., Free Press, 1996.
From This Day Forward: Commitment, Marriage, and Family in Lesbian and Gay Relationships. Stiers, Gretchen A., St. Martin's Griffin, 2000.
Gaylaw: Challenging the Apartheid of the Closet. Eskridge, William N., Jr., Harvard University Press, 1999.
"More Battles Ahead Over Gay Marriage." ABA Journal, February, 1997.
Lambda Legal Defense and Education Fund
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Grandparents' Rights (Encyclopedia of Everyday Law)
Grandparents in every state in the United States have rights, in some circumstances, to be awarded CUSTODY of their grandchildren or to be awarded court-mandated visitation with their grandchildren. Grandparents' rights are not constitutional in nature, nor did they exist at COMMON LAW. Recognition of grandparents' rights by state legislatures is a fairly recent trend, and most of the statutes have been in effect for less than 35 years.
Federal legislation may affect grandparents' rights, though these rights are based primarily on state law. Congress passed the Parental KIDNAPPING Prevention Act in 1980, which requires that each state give full faith and credit to CHILD CUSTODY decrees from other states. Federal legislation passed in 1998 also requires that courts in each state recognize and enforce grandparental visitation orders from courts in other states. All states have adopted a version of the Uniform Child Custody JURISDICTION and Enforcement Act ([UCCJEA] previously the Uniform Child Custody Jurisdiction Act), which requires courts in the state where a child resides to recognize and enforce valid child custody orders from another state. Though the UCCJEA is not a federal STATUTE, the provisions of this uniform law as adopted in each state are similar.
A number of courts have recently determined that state statutes providing visitation to grandparents are unconstitutional. The United States Supreme Court in the 2000 case of Troxel v. Granville determined that the Washington visitation statute violated the due process rights of parents to raise their children. This case and similar decisions by state courts have caused several state legislatures to consider bills that would modify or completely revise the visitation rights in those states. Grandparents who seek to attain visitation rights should check the current status of state legislation in their respective states.
Factors Considered for Custody or Visitation
Courts grant visitation or custody to grandparents only when certain conditions provided in the state statutes are met. Conditions for a grandparent to attain custody differ from those conditions required for visitation rights. A grandparent should be familiar with the conditions for either custody or visitation before determining whether to file a petition to request either from a court of law.
Best Interests of the Child
Courts in every jurisdiction must consider the "best interests of the child" when granting custody or visitation rights to a grandparent. In some states, the relevant statute provides a list of factors the court should considered when determining a child's best interests. Other states do not provide factors in the statute, but courts in those states have likely identified factors in custody and visitation cases interpreting the state statutes.
The following factors in determining the best interests of the child are among those included in state statutes and CASE LAW:
- The needs of the child, including considerations of physical and emotional health of the child, the safety of the child, and the welfare of the child
- The capability of the parents and/or grandparents to meet the needs of the child
- The wishes of the parent(s) and the grand-parent(s)
- The wishes of the child, if the child is capable of making decisions for himself or herself
- The strength of the relationship between the grandparent(s) and grandchild
- The length of the relationship between the grandparent(s) and grandchild
- EVIDENCE of abuse or neglect by the parent(s) or grandparent(s)
- Evidence of substance abuse by the parent(s) or grandparent(s)
- The child's adjustment to the home, school, or community
- The ability of the parent(s) or grandparent(s) to provide love, affection, and contact with the child
- The distance between the child and the parent(s) or grandparent(s)
Requirements for Awarding Custody to Grandparents
STATUTORY provisions for child custody (termed "conservatorship" in a few states) are usually less specific than the statutes regarding grandparent visitation. Courts must first consider the relationship of the parent or parents with the child before considering whether granting custody to grandparent(s) is appropriate. Several states specifically include consideration of grandparents as custodians if both parents are deceased. If either or both parents are alive, courts in most states will presume that the parent of the child should retain custody. Grandparents must generally prove the parent(s) unfit in order to overcome the judicial presumption in favor of the parent. Even if the relationship between the grandparent and grandchild is strong, it is very difficult for a grandparent to attain custody of a grandchild against the wishes of the parent or parents.
Requirements for Awarding Visitation to Grandparents
State statutes providing visitation to grandparents generally require that a number of conditions occur before visitation rights can be granted. The marital status of the parents must be considered in a majority of states before a court will evaluate the relevant factors to determine if visitation is appropriate. In some of these states, the parents' marital status is considered only if the grandparent or grandparents have been denied visitation by the parents. In other states, marital status is considered only if the grandchild resided with the grandparents for a certain length of time.
A minority of states require that at least one parent is deceased before a court can award visitation to the parent of the deceased parent of the child. For example, a maternal grandparent in one of these states may be awarded visitation only if the mother of the child is deceased.
State statutes vary in their treatment of cases in which a grandchild has been adopted. In several states, ADOPTION by anyone, including a stepparent or another grandparent, terminates the visitation rights of the grandparent. In some states, adoption by a stepparent or another grandparent does not terminate visitation rights, but adoption by anyone else does terminate these rights. In other states, adoption has no effect on the visitation rights of grandparents, so long as other statutory requirements are met.
Once the statutory conditions for visitation are met, grandparents must establish the factors that courts may or must consider to grant visitation rights. In every state, grandparents must prove that granting visitation to the grandchild is in the best interest of the child. Several states also require that the court consider the prior relationship between the grandparent and the grandchild, the effect grandparental visitation will have on the relationship between the parent and child, and/or a showing of harm to the grandchild if visitation is not allowed.
Parties Residing in the Same State
Each state provides the appropriate venue which can make custody and visitation determinations in a case where all of the parties reside in the same state. Where a DIVORCE is pending, the appropriate venue for making a custody or visitation decision involving the grandparents and grandchildren is almost always the court HEARING the divorce proceedings. Some states require visitation petitions to be filed with another domestic relations suit. Some states also permit visitation requests after a domestic relations order has been rendered or as an original proceeding.
Parties Residing in Different States
If a child's parents and/or grandparents live in different states, one of several laws will determine the appropriate court to hear a custody or visitation case. If a valid custody or visitation DECREE has been entered in one state, the Parental Kidnapping Prevention Act requires that another state must enforce and must not modify the decree. Another state may modify the decree only if the original state no longer has jurisdiction over the case or has declined jurisdiction to modify the custody or visitation decree. Congress amended this statute in 1998 to include a grandparent in the definition of "contestant."
If no state has made a valid custody determination, the provisions of the Uniform Child Custody Jurisdiction and Enforcement Act, as adopted by each state, will apply. A court in a particular state has power to hear a custody case if that state is the child's "home state" or has been the home state of the child within six months of the date the legal action was brought and at least one parent continues to reside in the state. Other situations include those in which a state with jurisdiction over a custody case declines jurisdiction or no other state may assert jurisdiction over the child.
State Provisions for Custody and Visitation
Grandparents should check a number of provisions in the statutes in their respective states to determine the conditions for visitation, the factors a court must consider to order visitation, and the proper venue to file a request for visitation. Though many state statutes are similar, state courts may apply statutory provisions differently. Every statute requires courts to consider the best interests of the child before awarding custody or visitation to grandparents.
As noted above, courts in a number of states have ruled that statutes providing for grandparent visitation violate either the federal or the respective state constitutions. Several states have revised the statutory visitation provisions, but the constitutionality of these statutes may still be in question. If an intermediate APPELLATE COURT in a particular state has ruled a visitation statute unconstitutional, it does not necessarily render the statute invalid. The provisions of these statutes are included below. However, if a state supreme court or the United States Supreme Court has determined that the visitation statute is unconstitutional, the provisions are not included below.
ALABAMA: The custody statute requires courts to consider the moral character of the parents and the age and sex of the child to determine the best interests of the child. Conditions for grandparent visitation rights include a determination of whether a parent is deceased, the child's parents are divorced, or the grandparent has been denied visitation. Adoption cuts off all visitation rights of grandparents. At least one Alabama Court of Appeals ruled the Alabama statute providing grandparental visitation unconstitutional.
ALASKA: Determination of grandparent visitation rights must be made in an action for divorce, legal separation, or child placement action, or when both parents have died. Adoption cuts off the visitation rights of grandparents unless the adoption decree provides for visitation between the child and the natural relatives.
ARIZONA: A court may award visitation rights if the child's parents' marriage has been dissolved for at least three months, or the child is born out of wedlock. Adoption cuts off the visitation rights of the grandparents unless the adoption is granted to a stepparent.
ARKANSAS: The custody statute requires that court grant custody "without regard to the sex of the parent but solely in accordance with the welfare and best interest of the children." Conditions for grandparent visitation rights include several circumstances where the grandchild has resided with the grandparent, the child's parents are divorced, the child is in the custody of someone other than a parent, or the child has been born out of wedlock. Adoption cuts off all visitation rights of the natural grandparents.
CALIFORNIA: Conditions for grandparent visitation rights include a determination of whether a parent is deceased, the child's parents are divorced or separated, the whereabouts of one parent is unknown, or the child is not residing with either parent. In addition to determining that visitation is in the child's best interests, the court must find that the grandparents had a preexisting relationship with the grandchild. The court must also balance visitation with the parents' rights. If both parents agree that the court should not grant visitation to the grandchild, the court will presume that visitation is not in the child's best interests. Adoption does not automatically cut off the visitation rights of grandparents. Note that a California Court of Appeals in 2001 ruled the California statute providing grandparental visitation unconstitutional.
COLORADO: A court may award visitation rights if the child's parents' marriage has been terminated, legal custody of the child has been given to a third party, the child has been placed outside the home of either of the child's parents, or the grandparent is the parent of a deceased parent of the child. Adoption cuts off the visitation rights of the grandparents unless the adoption is granted to a stepparent.
CONNECTICUT: A court may award visitation rights if visitation is in the child's best interest. Adoption does not automatically cut off the visitation rights of grandparents.
DELAWARE: A court may award visitation rights if visitation is in the child's best interest. Adoption cuts off all visitation rights of grandparents.
FLORIDA: The Florida Supreme Court has ruled the Florida statute providing grandparental visitation unconstitutional, and the Florida Legislature has not adopted an alternative statute.
GEORGIA: The custody statute does not list specific factors for the court to consider for determining the best interest of the child. A court may award visitation rights if an action is pending where there is an issue involving the custody of a minor child, divorce of the child's parents, termination of a parent's rights, or visitation rights. Adoption cuts off the visitation rights of the grandparents unless the adoption is granted to a stepparent or a natural relative of the child.
HAWAII: The custody statute requires courts to consider the child's wishes, if the child is old enough and has the capacity to reason, and evidence of any DOMESTIC VIOLENCE, when determining the best interest of the child. A court may award visitation rights if Hawaii is the home state of the child at the time visitation is requested, and visitation is in the best interest of the child. Adoption cuts off all visitation rights of grandparents.
IDAHO: A court may award visitation rights if visitation is in the child's best interest. Adoption cuts off all visitation rights of grandparents.
ILLINOIS: A court may award visitation rights if the parents are not living with one another; one of the parent's is absent, one of the parents is deceased, or one of the parents joins the petition with the grandparent. A court may not allow visitation to a paternal grandparent if the grandchild was born out of wedlock and PATERNITY has not been established. Visitation will also not been allowed if the child is surrendered voluntarily by the parents to anyone besides the Illinois Department of Children and Family Services or a foster care service. Adoption cuts off the visitation rights of the grandparents unless the adoption is granted to a stepparent.
INDIANA: A court may award visitation rights if either of the child's parents is deceased, the child's parents' marriage has been terminated, or the child was born out of wedlock. In addition to considering whether visitation is in the child's best interest, a grandparent must show that he or she has had, or attempted to have, meaningful contact with the grandchild. Adoption cuts off the visitation rights of the grandparents unless the adoption is granted to a stepparent or a natural grandparent, sibling, aunt, uncle, niece, or nephew of the child.
IOWA: The custody statute requires courts to consider the best interest of the child that will provide the "maximum continuing physical and emotional contact with both parents." The Iowa Supreme Court has ruled the Iowa statute providing grandparental visitation unconstitutional, and the Iowa Legislature has not adopted an alternative statute.
KANSAS: A court may award visitation rights in a custody order. Adoption cuts off the visitation rights of the grandparents unless the grandparent is the parent of a deceased parent and the surviving parent's spouse adopts the child.
KENTUCKY: A court may award visitation rights if visitation would be in the child's best interest. A court may award a grandparent the same visitation rights as a parent without custody if the grandparent's child is deceased and the grandparent has provided CHILD SUPPORT to the grandchild. Adoption cuts off the visitation rights of grandparents unless the adoption is granted to a stepparent, and the grandparent's child has not had his or her parental rights terminated.
LOUISIANA: A court may award visitation rights if the child's parent is deceased or declared legally incompetent, a grandparent is the parent of the deceased or incompetent parent to the grandchild, and visitation is in the child's best interest. Adoption cuts off the visitation rights of grandparents except in circumstances where the grandparents are the parents of a deceased party to the marriage or the parents of a party who has forfeited his or her rights to object to the child's adoption.
MAINE: A court may award visitation right if at least one of the child's parents is deceased, visitation is in the child's best interest, and visitation will not interfere significantly with the relationship between the parent and the child. Adoption cuts off all visitation rights of grandparents.
MARYLAND: The custody statute does not provide a list of factors for determining the best interest of the child. A court may award visitation rights if visitation is in the child's best interest. The factors for determining the child's best interest have been set forth in case law. Adoption cuts off all visitation rights of grandparents.
MASSACHUSETTS: The custody statute does not provide a list of factors for determining the best interest of the child. A court may award visitation rights if the child's parents' marriage is terminated, the parents are separated, one of the parents is deceased, or the child was born out of wedlock and paternity has been established. Adoption cuts off the visitation rights of grandparents unless the adoption is granted to a stepparent.
MICHIGAN: A court may award visitation rights if the child's parents' marriage is terminated, the parents separate, or custody of the child is given to a third party other than the child's parents. Adoption cuts off the visitation rights of grandparents unless the adoption is granted to a stepparent.
MINNESOTA: A court may award visitation rights if a child's parent is deceased and the grandparents are the parents of the deceased parent. Visitation may also be granted during or after divorce, custody, separation, ANNULMENT, or paternity proceedings. Adoption cuts off the visitation rights of grandparents unless the adoption is granted to a stepparent or another grandparent.
MISSISSIPPI: The custody statute does not provide a list of factors for determining the best interest of the child. If the child is at least 12 years old, he or she may choose who takes custody. Conditions for grandparent visitation rights include determination of whether one of the child's parents is deceased, or a parent has had his or her parental rights terminated. The court must also consider the relationship between the grandparent and grandchild. Adoption cuts off the visitation rights of grandparents unless the adoption is granted to a stepparent or a blood relative.
MISSOURI: A court may award visitation rights if the child's parents have filed for divorce, one parent is deceased and the other parent has unreasonably denied visitation to the grandparent, or when a parent or parents unreasonably deny visitation to a grandparent for more than 90 days. Adoption cuts off the visitation rights of grandparents unless adoption is granted to a stepparent, another grandparent, or a blood relative.
MONTANA: A court may award visitation rights if the court finds that visitation is in the child's best interest. Adoption cuts off the visitation rights of grandparents unless adoption is granted to a stepparent or another grandparent.
NEBRASKA: A court may award visitation rights if at least one parent is deceased, the parents' marriage has been dissolved or a petition for DISSOLUTION has been filed, or the child is born out of wedlock and paternity has been established. Grandparents must demonstrate that a beneficial relationship exists between themselves and the grandchild and that visitation is in the child's best interest. Visitation cannot interfere with the parent-child relationship. Adoption cuts off all visitation rights of grandparents.
NEVADA: A court may award visitation rights if the child's parents are deceased, the child's parents are divorced or separated, or one of the child's parents have had his or her parental rights terminated. The child's parent or parents must have unreasonably restricted visitation between the grandparent and grandchild before a court may award visitation to a grandparent. If a child's parent or parents has denied or unreasonably restricted access to a grandparent, a court will presume that visitation is not in the child's best interest. Adoption cuts off all rights of grandparents unless grandparents request visitation before the termination of the parental rights of the child's parent or parents.
NEW HAMPSHIRE: A court may award visitation rights if the child's parents are divorced or have filed for divorce, one of the parents is deceased, one of the parents has had his or her parental rights terminated, or the child has been born out of wedlock, if the child has been legitimated. Adoption cuts off all rights of grandparents.
NEW JERSEY: A court may grant visitation rights if visitation is in the child's best interest. Adoption cuts off the rights of grandparents, unless adoption is granted to a stepparent. Note that a New Jersey Court of Appeals in 2001 ruled the New Jersey statute providing grandparental visitation unconstitutional.
NEW MEXICO: A court may grant visitation rights if the child's parents are divorced, separated, or deceased. Visitation rights may also be granted if the child is over six years old, lived with the grandparent for more than six months, and was subsequently removed from the grandparent's home (if the child is under six, the residence requirement is reduced to three months). Adoption cuts off the rights of grandparents unless adoption is granted to a stepparent, a relative of the child, a caretaker designated in a deceased parent's will, or a person who sponsored the child at a baptism or confirmation.
NEW YORK: The custody statute does not provide statutory factors for determining the best interest of the child. A court may grant visitation rights if at least one of the child's parents is deceased or if the court finds that equity demands intervention based on the circumstances of the case. Adoption does not automatically cut off the visitation rights of grandparents. Note that a New York APPELLATE court in 2001 ruled the New York statute providing grandparental visitation unconstitutional.
NORTH CAROLINA: The custody statute does not provide statutory factors for determining the best interest of the child. A court may grant visitation rights as part of an order determining custody of the child. Adoption cuts off the visitation rights of grandparents unless adoption is granted to a stepparent or a relative of the child, where the grandparent proves that a substantial relationship exists between the grandparent and grandchild.
NORTH DAKOTA: A court must grant visitation rights unless the court determines that visitation would not be in the child's best interest. The amount of contact between the child, the grandparent, and the parent are factors to be considered when determining the child's best interest. Adoption cuts off the rights of grandparents, unless visitation was granted prior to the adoption.
OHIO: A court may grant visitation rights if the child's parents are deceased, divorced, separated, were parties to a suit for annulment or child support, or were never married to one another. Grandparents must show they have an interest in the child's welfare. Adoption cuts off the visitation rights of grandparents unless adoption is granted to a stepparent.
OKLAHOMA: A court may grant visitation rights if visitation is in the child's best interest. The statute provides special rules when the child is born out of wedlock. Adoption cuts off the visitation rights of grandparents unless the grandparents can show a previous relationship existed between them and the grandchild, and visitation is in the child's best interest.
OREGON: Determination of grandparent visitation rights include consideration of the relationship between the grandparent and grandchild, as well as the relationship between the parent and child. Adoption cuts off all visitation rights of grandparents.
PENNSYLVANIA: A court may grant visitation if at least one of the child's parents is deceased, the parents are divorced or separated for more than six months, or the child has lived with the grandparent for more than 12 months. Determination of grandparent visitation must include consideration of the best interest of the child, potential interference with the parent-child relationship, and the contact between the grandparent and grandchild. Adoption cuts off visitation rights of grandparents unless adoption is granted to a stepparent or grandparent.
RHODE ISLAND: The custody statute does not provide statutory factors for determining the best interest of the child. Determination of grandparent visitation must include consideration of the relationship of the grandparent and grandchild, including the best interest of the child. Courts may also grant visitation if the child's parents are divorced or the parent who is the child of the grandparent is deceased. Adoption cuts off all visitation rights.
SOUTH CAROLINA: A court may grant visitation if one parent is deceased, or the parents are divorced or separated. The court must consider the relationship between the grandparent and the child, as well as the parent and the child. Adoption cuts off all visitation rights of grandparents.
SOUTH DAKOTA: The custody statute does not provide statutory factors for a court to determine proper custody. A court may grant visitation if one parent is deceased, or the parents are divorced or separated. Adoption cuts off the visitation rights of grandparents unless adoption is granted to a stepparent or grandparent of the child.
TENNESSEE: The Tennessee Supreme Court ruled a previous version of the Tennessee grandparent visitation statute unconstitutional.
TEXAS: The custody statute does not provide statutory factors for a court to determine proper custody. Conditions for grandparent visitation rights include a determination that one of the child's parents is deceased, incompetent, incarcerated, or has had his or her parental rights terminated. Visitation may also be awarded if the parents are divorced, the child has been abused or neglected, the child has been adjudicated a delinquent or in need of supervision, or the child has lived with the grandparent for at least six months within 24 months of the filing of the petition for visitation. Adoption cuts off the visitation rights of the grandparent unless the adoption is granted to a stepparent.
UTAH: Conditions for grandparent visitation rights include whether a parent is deceased, or whether the parents are divorced or separated. Adoption cuts off all visitation rights of grandparents.
VERMONT: Conditions for grandparent visitation rights include consideration of whether a parent is deceased, incompetent, or whether the child has been abandoned. Adoption cuts off all visitation rights of grandparents unless the adoption is granted to a stepparent or a relative of the child.
VIRGINIA: Determination of grandparent visitation is made during a suit for dissolution of the marriage of the child's parents. Adoption cuts off all visitation rights of grandparents.
WASHINGTON: The United States Supreme Court case of Troxel v. Granville ruled the Washington grandparent visitation statute is unconstitutional.
WEST VIRGINIA: The custody statute does not provide statutory factors for a court to determine proper custody. Conditions for grandparent visitation rights include consideration of whether a parent is deceased, the child has resided with the grandparent and subsequently was removed by a parent, or the grandparent in several circumstances has been denied visitation by a parent. Adoption cuts off all visitation rights of grandparents.
WISCONSIN: Conditions for grandparent visitation rights include consideration of the relationship between the grandparent and grandchild. Visitation may also be permitted if one of the child's parents is deceased. Adoption cuts off the visitation rights of grandparents unless adoption is granted to a stepparent.
WYOMING: The custody statute does not provide statutory factors for a court to determine proper custody. Conditions for grandparent visitation rights include consideration of the child's best interest and the impairment of the rights of the parents.
Grandparents: An Annotated Bibliography on Roles, Rights, and Relationships. Carol Ann Strauss, Scarecrow Press, 1996.
Grandparents' Rights. Tracy Truly, Sphinx Publishing, 1999.
Grandparents' Visitation Rights: A Legal Research Guide. M. Kristine Taylor Warren, W. S. Hein, 2001.
. "Comparison of Grandparent Visitation Statutes Nationwide" American Association of Retired Persons, 2001.
Uniform Child Custody Jurisdiction and Enforcement Act. National Conference of Commissioners on Uniform State Laws, 1997. Available at http://www.law.upenn.edu/bll/ulc/uccjea/chldcus2.htm.
U. S. Code, Title 28: Judiciary and Judicial Procedure, Part V: Procedure, Chapter 115: Evidence; Documentary. U. S. House of Representatives, 2000. Available at .
American Association of Retired Persons (AARP)
601 E. St., NW
Washington, DC 20049 USA
Association for Conflict Resolution (ACR)
1527 New Hampshire Avenue NW
Washington, DC 20036 USA
Phone: (202) 667-9700
Fax: (202) 265-1968
Grandparent Rights Organization (GRO)
100 West Long Lake Rd., Ste. 250
Bloomfield Hills, MI 48304 USA
Phone: (248) 646-7177
Fax: (248) 646-9722
Primary Contact: Kathleen Germaine
Guardianship (Encyclopedia of Everyday Law)
A GUARDIAN is someone who is chosen, either by a court or by being named in a will, to make decisions for someone else when that personenerally referred to as the wardannot do the same for him or herself. These types of decisions include: giving consent to medical care or treatment; purchasing or arranging for purchase of such necessities as food, clothes, cars, household items, and other personal items; arranging for education; and managing finances and bank accounts.
A guardianship requires that someone act on behalf of and protect the ward during the period of time when the ward is incapable of doing so. When asking the court appoints a guardian in a particular situation, the court must be sure that the potential ward is incapacitated and cannot make decisions for him or herself because of a mental or physical DISABILITY, disease, or addiction to alcohol or other drugs. The fact that potential wards are minors who lack someone to make certain decisions on their behalf until they reach the AGE OF MAJORITY is also sufficient reason to ask the court to appoint a guardian.
The selection of a guardian is an extremely important task. Certain people, with ties to the ward, are preferred by courts as possible guardians. These include the person designated by the ward, before the period of incapacity occurred, by legal document or otherwise to handle his or her affairs; the spouse; parents; or another relative; or a state employee or private person familiar with the ward and the incapacity at issue. Whoever is chosen by the court must be willing and able to perform the duties at hand and to represent the best interests of the ward. In selecting the guardian, the court considers the prospective guardian's character, history, physical capacity, and other relevant attributes. A potential guardian's limited education or financial resources are not disqualifying conditions in and of themselves.
The guardianship statutes of each state detail the specific duties, responsibilities, and powers of the guardian. They should be examined in order to determine the regulations that apply to each situation.
Guardianship of Minors
The guardianship of a minor can be over the actual minor (or what is commonly referred to as the minor's person), the property (or estate) of the minor, or both. Preferred guardians for a minor are parents and then other relatives. However, the primary consideration in selecting a guardian is the best interests of the minor. If the parents are still alive, before a nonparent is chosen as a guardian, the parents must be determined to be unable or unfit to look after the best interests of the minor. When minors are removed from the care and supervision of their parents, and ADOPTION is either not forthcoming or not a viable option, guardianship is considered a reasonable alternative.
Even after a guardian is chosen for a minor, most state statutes allow that at age fourteen (or other reasonable age), the minor may select or at least voice a preference, concerning who will be selected to serve a guardian.
The guardian of a minor looks after the direct physical well-being of the minor and the assets of the minor's estate. A guardian is also necessary to provide a LEGAL RESIDENCE in order for the ward to attend a public school; to apply for public assistance benefits for a minor if needed; to apply for public housing on behalf of a minor where necessary; and to bring a lawsuit on behalf of the minor. The guardian also receives and maintains any money due the minor for his or her care or support. The guardian is required to maintain, account for, and preserve any excess funds beyond what is necessary to support the minor. The guardian has a duty to look after the minor's PERSONAL PROPERTY and assure the proper education of the ward. The guardian is also required to authorize any necessary medical or other care for the well-being and health of the ward. Generally, the guardian provides whatever care would be given to a child by its parents.
When a guardianship of a minor is instituted because of the age of the ward, the guardianship may be terminated when the minor reaches the age of majority. The guardianship may be reinstated by the court after the ward reaches the age of majority where it can be shown that the ward still requires supervision. Guardianship may be terminated if the ward marries. Guardianship is automatically terminated at the death of the ward. In addition, the guardianship may be terminated, and a new guardian appointed, when it can be shown that the guardian did not adequately perform his or her duties to the ward.
Generally, parents may, in a properly drafted will, appoint or indicate their preference for a guardian for a minor child or an adult child with a disability who requires supervision over his or her person or estate. Courts will then make a determination as to the availability or appropriateness of the parents' selection.
Some state statutes provide for temporary or limited guardianships. These guardianships are generally granted by the courts to achieve a specific purpose for a certain amount of time. Once the purpose is accomplished, the guardianship is terminated.
Also, emergency guardianships have been granted. In these situations, an emergency situation exists and someone is needed to give approval in order for the person to receive emergency services. A temporary guardian is appointed by the court to serve during the existence of the emergency situation. Generally, the person being served by the temporary guardian is disabled or incapacitated in some way. The court must determine that the person being served by the guardian is unable to make the emergency decision because of mental disability, addiction, debilitating disease, or some other similar limitation. The court must also determine that if a guardian is not appointed, the person is at risk of serious harm or even death. Finally, the court must determine that there is no other person available who can make the emergency determination for the incapacitated person.
The order for emergency guardianship is generally granted for a short period of time which is sufficient to allow the situation to be handled properly. After the emergency situation has ended or subsided, the temporary guardian must file a report with the court detailing the nature of the services rendered by the guardian and describing the outcome of the situation.
Guardianship of Persons who are Mentally or Physically Incapacitated or Disabled
State statutes define mental and physical disability. However, generally, such disability or incapacity involves severe and long-term conditions that impose great limitations upon individuals' ability to take care of themselves, express themselves verbally, earn a living, and live independently of the care of others. Such a disability also reflects the necessity for a combination of treatments and services.
Guardianships for physically or mentally disabled or incapacitated persons have, in recent decades, been understood to facilitate the independence and self-reliance of the ward. They are limited as much AS IS reasonable in order to allow wards to exercise as much control over their lives as possible while maintaining as much dignity and self-reliance as possible. The desires of the wards are given primary consideration. Also, wards are allowed to do as much of their own care giving as is physically and mentally possible.
The guardian will be granted only those powers necessary to accomplish for the ward what the ward cannot accomplish independently. These powers may include assuring the availability and maintenance of care for the ward, making sure that educational and medical services are maintained and adequate, and submitting updates to the court of the ward's condition. These court updates describe the ward's living situation, status of mental and physical health based upon medical examinations and official records, provide a list of services being received by the ward, describe services rendered by the guardian, account for the ward's monetary assets, and any other information necessary to submit to the court in order for it to assess the status of the ward and the guardian's duties.
Removal of Guardian
A guardian may be removed if a court determines that the ward no longer needs the services of the guardian. Also, a guardian may be removed when he or she has not provided adequate care for the ward or when it is determined that the guardian is guilty of neglect. Neglect can include using the ward's money or property for the guardian's own benefit and not obeying court orders. Upon court order, the guardian will be removed and a new guardian (or temporary guardian) will be substituted in place of the original guardian.
Examination of Certain State Provisions on Guardianship
FLORIDA: The STATUTE on guardianships for incapacitated persons requires that the court find the "least restrictive form of guardianship to assist persons who are only partially incapable of caring for their needs." The statute also confirms the legislative intent that incapacitated persons function and live as independently as possible, managing their finances and developing their potential for self-sufficiency. To that end, they will be encouraged to develop their living skills to the extent that they may, for example, be able to marry, vote, travel, sign contracts, complete their educational objectives, and apply for a driver's license.
MASSACHUSETTS: Regarding the guardian of a minor, the statute states that the court will choose the guardian for any minor under the age of fourteen. A minor over the age of fourteen may suggest his or her own guardian and the court will try to honor that request. If the court does not find the guardian desired by the minor to be appropriate, then the court will appoint another guardian. Regarding the care of a mentally ill person by a guardian, the statute declares that a guardian will not have the authority to commit the ward to a mental institution or agree to the administering of "antipsychotic medication" unless the court first finds that such an action is in the "best interests" of the ward and then authorizes such a commitment or treatment. Regarding testamentary guardians, the statute allows parents to appoint such a guardian on behalf of a minor child, even if the child is not born at the time the testamentary instrument is drafted. Such a testamentary guardian will have the same powers and duties as one appointed by the court.
NEW HAMPSHIRE: Regarding the duties of a guardian for a minor, the guardian will "protect and preserve" the personal and real property assets of the minor and any income the comes from rents, income, or the sale of such property. The guardian is also given the authority, with the courts approval, to open a trust to which the minor's assets can be transferred. This trust would end no later than the ward's twenty-fifth birthday.
SOUTH CAROLINA: Regarding persons with disabilities, the spouse (if the incapacitated person is married) or parents of an incapacitated person may make a testamentary appointment of a guardian for the incapacitated person in their will. Such an appointment by a spouse or parent becomes effective if, after the incapacitated person and the person giving him or her care or the "nearest adult relative" has received twenty days written notice and "the guardian files acceptance of appointment in the court." When both a spouse and a parent appoint guardians in their wills, the appointment of the spouse has priority.
Corpus Juris Secundum. Volume 39, West Publishing, 1976.
Guardianship Manual. (Chapter Five) The Maryland Institute for Continuing Professional Education of Lawyers, Inc., 1999.
Michigan Guardianship and Conservatorship Handbook. Institute of Continuing Legal Education, 2000.
"Permanency Outcomes in Legal Guardianships of Abused/Neglected Children." Henry, Jim "Families in Society: The Journal of Contemporary Human Services" 80 (1999): 561.
Representing the Child Client. New York: Lexis Publishing, 2001.
California Coalition for Youth (CCY)
1220 H Street, Ste, 103
Sacramento, CA 95814 USA
Phone: (916) 340-0505
Primary Contact: Cheryl Zando, Board Chair (Youth)
Citizens for Better Care (CBC)
4750 Woodward Aveneu, Ste,. 410
Detroit, MI 48201 USA
Phone: (800) 833-9548
Fax: (313) 832-7407
Primary Contact: Nida Donar, Executive Director
National Guardianship Association (NGA)
1604 North Country Club Road
Tucson, AZ 85716 USA
Phone: (520) 881-6561
Fax: (520) 325-7925
Primary Contact: Terry W. Hammond, Board Member
Marriage/Marriage Age (Encyclopedia of Everyday Law)
Marriage has generally been defined as a contract between a man and a woman who have consented to become husband and wife. More specifically, the U. S. Congress, in the Defense of Marriage Act (DOMA), PUBLIC LAW 104-199, passed in 1996, defines marriage as "a legal union between one man and one woman as husband and wife."
Marriage requirements are defined by the laws of each state. Yet, there are certain aspects of a valid marriage that are required of any couple desiring to become husband and wife. These additional considerations include the capacity of the parties to enter into the marriage, the consent of the parties, and the age of each person. Regarding age, if individuals are minors, they must obtain the consent of either one or both of their parents, depending upon the laws of the state.
The fact that the states can regulate marriage has given rise to laws that control other aspects of the ability of a couple to wed including the race of the each party in the couple, the sex of each party, and whether either party is already married. Although the states have the authority to regulate the institution of marriage and establish the laws that do so, some laws, such as those forbidding people of different races to marry, have been struck down by the Supreme Court of the United States as unconstitutional. The Congress of the United States has also enacted limitations to the marital union, the most recent being the enactment of DOMA which not only defines marriage but also gives individual states the right not to recognize "a relationship between persons of the same sex that is treated as a marriage under the laws of such other State." In other words, such laws from one state do not have to be recognized by another state.
Because the laws regarding marriage vary considerably from state to state, couples desiring more specific information should contact their state government.
Before a marital union is recognized by a state, there must, foremost, be consentr agreementbetween the parties of the union to be married. For consent to exist, both parties must agree to the marriage and there must be no mistake as to the nature of the union. In addition, no force must be used upon either party to enter into the union. Once consent is determined to exist, the laws of the individual states determine the status of the couple as husband and wife.
Age is an additional aspect of consent to marry. All states prescribe the age which must be reached by both parties to the marriage for the couple to be able to legally agree to become husband and wife without parental permission. For all but two states this "age of consent" is eighteen (in Mississippi the age is twenty-one and in Nebraska the age is nineteen).
The states vary in determining the minimum age at which a couple can marry with parental consent. However, for the majority of states, this age is sixteen though in a very few states, this age is as low as fourteen.
Capacity generally refers to the mental ability of one or both of the parties to the marriage to agree to become husband and wife. Both parties must be of "sound" mind and capable of agreeing to the marriage. Not all forms of mental illness and insanity serve to render someone incapable of entering into a marriage. A common test of capacity is the ability of individuals to understand the nature of marriage and what their responsibilities are to their partners once they enter into the union. Physical incapacity, and in particular the physical inability to have sexual intercourse, does not in and of itself render one incapable of marrying and does not on its face void a marriage that has already occurred.
Between Close Relatives
The laws of each state strictly regulate the marriage between relatives (also known as consanguinity). According to the "rules of consanguinity," no state allows marriage to a child, grandchild, parent, grandparent, uncle, aunt, niece, or nephew. However, for all other familial relationships, the states vary widely and the particular laws of the state of marriage must be consulted.
Common Law Marriage
Though laws regarding marriage are well regulated by the states, at one point, most state laws allowed for the institution of COMMON LAW marriage. Common law marriages were based not just on the desire of the couple to live together or by their actually living or having lived together. For a common law marriage to achieve validity as a marriage, the couple must have lived together for a certain amount of time, had sexual relations, and represented themselves as husband and wife in all affairs and to all people. Though no marriage ceremony had taken place, their children are viewed as legitimate and surviving families are entitled to state sanctioned INHERITANCE.
Currently, the majority of states do not recognize common law marriage. Three states that do not recognize common law marriages (Georgia, Idaho, and Indiana) recognize unions that were entered into before certain dates (for Georgia and Idaho the year is 1997, for Indiana the year is 1958).
There are no prohibitions to interracial unions in the United States. At one time, many states had enacted statutes forbidding marriages between people of different races. Such a mixed-race union is also known as "miscegenation." These antimiscegenation statutes were found across the United States and particularly in Southern states. Though most states had repealed such laws by the time of the case of Loving v. Virginia, in 1967 the U. S. Supreme Court, in deciding that case, decreed all such laws to be unconstitutional because they violated the EQUALPROTECTION Clause of the U. S. Constitution.
POLYGAMY occurs when a spouse is married to more than one person at the same time. Polygamy is illegal in the United States. Polygamous marriages have been illegal since 1878 when the U. S. Supreme Court ruled that one of the basic tenets of Western civilization was the marriage of one man to one woman. Therefore, anyone who marries for the second time without ending a first marriage could be charged with polygamy.
Same Sex/Gay Marriage
Traditionally in the United States, the marital union has been confined to a relationship between a man and a woman. However, that notion has been challenged in states such as Hawaii and Vermont. In response to these and other challenges, at least twenty-five states have passed marriage laws prohibiting same sex marriages. In almost as many states, bills prohibiting same sex/gay marriage have been defeated. In 1996, the Congress of the United States passed the Defense of Marriage Act (DOMA). This act defines the word marriage as a "legal union between one man and one woman as husband and wife." In addition, in response to the possibility that some states would recognize a same sex relationship as a marriage while others would not, DOMA determines that other states do not have to "give effect to" or recognize "a right or claim arising from" such unions which may be legal in other states.
Effective July 1, 2000, the state of Vermont enacted a law, the first in the country, permitting same sex couples to be parties to a "civil union." These unions, though not technically marriages, give same sex couples all the "benefits, protections, and responsibilities under Vermont law . . . as are granted to spouses in a marriage." This law also allows parties who reside outside Vermont to enter the state to achieve a civil union. However, in accordance with DOMA, other states are not required to recognize these unions.
Change of Last Name
A woman is not legally required to change her last name to that of her husband upon her marriage.
State by State Summary (age of consent, etc.)
The following is a state by state summary of the "age of consent" for marriage and other pertinent marriage information for the fifty states, the District of Columbia, and Puerto Rico
ALABAMA: The AGE OF CONSENT is eighteen. With parental consent, parties can marry at age fourteen. However, this parental consent is not required if the minor has already been married. (Other STATUTORY laws apply.) Common law marriage is recognized.
ALASKA: The age of consent is eighteen. With parental consent, parties can marry at the age sixteen. Parties can marry at a younger age, also with parental consent. Common law marriage is not recognized.
ARIZONA: The age of consent is eighteen. With parental consent, parties can marry at the age of sixteen. Parties can marry at a younger age, but with both parental and judicial consent.
ARKANSAS: The age of consent is eighteen. With parental consent, males can marry at the age of seventeen and under the age of seventeen can marry with parental consent and can receive a license by reason of pregnancy or the birth of a child. With parental consent, females can marry at age sixteen and under the age of sixteen can marry with parental consent and can receive a license by reason of pregnancy or the birth of a child.
CALIFORNIA: The age of consent is eighteen. With parental consent, there are no age limits regarding the minimum age for a couple to marry. (Other statutory laws apply.)
COLORADO: The age of consent is eighteen. Parties can marry at a younger age, also with parental consent. Common law marriage is recognized.
CONNECTICUT: The age of consent is eighteen. With parental consent, parties can marry at the age of sixteen. Parties can marry at a younger age, but with both parental and judicial consent.
DELAWARE: The age of consent is eighteen. Males can marry under the age of eighteen with parental consent and under the age of seventeen can receive a license by reason of pregnancy or the birth of a child. With parental consent, females can marry at age sixteen and under the age of sixteen can apply for and receive a license by reason of pregnancy or the birth of a child. Common law marriage is not recognized.
FLORIDA: The age of consent is eighteen. With parental consent, parties can marry at age sixteen and parties under the age of sixteen can receive a license by reason of pregnancy or the birth of a child. However, this parental consent is not required if the minor has already been married. Common law marriage is not recognized.
GEORGIA: The age of consent is eighteen. With parental consent and/or the consent of a judge, parties can marry at age sixteen and under the age of sixteen can apply for and receive a license by reason of pregnancy or the birth of a child. Common law marriages are not recognized except for those that were entered into before 1997.
HAWAII: The age of consent is eighteen. With parental consent and/or the consent of a judge, parties can marry at age fifteen. Common law marriage is not recognized.
IDAHO: The age of consent is eighteen. With parental consent, parties can marry at age sixteen. Common law marriages are not recognized except for those that were entered into before 1997.
ILLINOIS: The age of consent is eighteen. With parental consent, parties can marry at age sixteen. If parents refuse to consent, judicial consent may be obtained on behalf of the parties. Common law marriage is not recognized.
INDIANA: The age of consent is eighteen. With parental consent, parties can marry at age seventeen and under the age of seventeen can receive a license by reason of pregnancy or the birth of a child. Common law marriages are not recognized except for those that were entered into before 1958.
IOWA: The age of consent is eighteen. With parental consent and/or the consent of a judge, parties can marry at age sixteen. Common law marriage is recognized.
KANSAS: The age of consent is eighteen. With parental consent and/or the consent of a judge, males can marry at age fourteen and females at age twelve. Common law marriage is recognized.
KENTUCKY: The age of consent is eighteen. With parental consent and/or the consent of a judge, parties can marry under eighteen years of age. Common law marriage is not recognized.
LOUISIANA: The age of consent is eighteen. Parties under eighteen years of age can marry with parental consent. Common law marriage is not recognized.
MAINE: The age of consent is eighteen. With parental consent, parties can marry at age sixteen. With parental consent, parties can marry at age sixteen. Common law marriage is not recognized.
MARYLAND: The age of consent is eighteen. With parental consent, parties can marry at age sixteen and younger parties may receive a license by reason of pregnancy or the birth of a child. Parties giving consent must appear in person to give consent and provide proof of age if the parties seeking marriage are at least sixteen years old. Also, if one of the parents giving consent is ill both an AFFIDAVIT by the ill parent and from a physician is required to submit. Common law marriage is recognized.
MASSACHUSETTS: The age of consent is eighteen. With parental consent and/or the consent of a judge, males can marry at fourteen years of age and females can marry at the age of twelve. Common law marriage is not recognized.
MICHIGAN: The age of consent is eighteen. With parental consent, parties can marry at age sixteen. Common law marriage is not recognized.
MINNESOTA: The age of consent is eighteen. With parental consent and/or the consent of the judge, parties can marry at age sixteen. Common law marriage is not recognized.
MISSISSIPPI: The age of consent is twenty-one. With parental consent and/or the consent of the judge, males can marry at age seventeen and females can marry at age fifteen. Common law marriage is not recognized.
MISSOURI: The age of consent is eighteen. With parental consent, parties can marry at age fifteen and younger parties may receive a license by reason of special circumstances. Common law marriage is not recognized.
MONTANA: The age of consent is eighteen. With parental consent and/or consent of a judge, parties can marry at age sixteen and younger parties may receive a license by reason of special circumstances. Common law marriage is recognized.
NEBRASKA: The age of consent is nineteen. With parental consent, parties can marry at age seventeen. Common law marriage is not recognized.
NEVADA: The age of consent is eighteen. With parental consent, parties can marry at age sixteen and younger. Common law marriage is not recognized.
NEW HAMPSHIRE: The age of consent is eighteen. With parental consent and the consent of the judge, males can marry at age fourteen and females can marry at age thirteen. Common law marriage is not recognized.
NEW JERSEY: The age of consent is eighteen. With parental consent, parties can marry at age sixteen or younger. Also, younger parties may receive a license by reason of pregnancy or the birth of a child or other special circumstances. Common law marriage is not recognized.
NEW MEXICO: The age of consent is eighteen. With parental consent, parties can marry at age sixteen and younger parties may receive a license by reason of pregnancy or the birth of a child or other special circumstances. Common law marriage is not recognized.
NEW YORK: The age of consent is eighteen. With parental and judicial consent, parties can marry at age sixteen. Common law marriage is not recognized.
NORTH CAROLINA: The age of consent is eighteen. With parental consent, parties can marry at age sixteen and younger parties may receive a license by reason of pregnancy or the birth of a child. Common law marriage is not recognized.
NORTH DAKOTA: The age of consent is eighteen. With parental consent, parties can marry at age sixteen. Common law marriage is not recognized.
OHIO: The age of consent is eighteen. With parental consent, males under the age of 18 can marry and females at age sixteen can marry and younger parties may receive a license by reason of pregnancy or the birth of a child. Common law marriage is not recognized.
OKLAHOMA: The age of consent is eighteen. With parental consent, parties can marry at age sixteen (and younger) and, in addition, younger parties may receive a license by reason of pregnancy or the birth of a child. Common law marriage is recognized.
OREGON: The age of consent is eighteen. With parental consent, parties can marry at age seventeen with the exception that if one party does not have a parent who resides in the state and one party has been a resident in Oregon for at least six months, then no permission is necessary. Common law marriage is not recognized.
PENNSYLVANIA: The age of consent is eighteen. With parental consent, parties can marry at age sixteen and younger parties may receive a license by reason of special circumstances. Common law marriage is recognized.
RHODE ISLAND: The age of consent is eighteen. With parental consent, males can marry under age eighteen and females at sixteen and younger parties may receive a license under special circumstances. Common law marriage is recognized.
SOUTH CAROLINA: The age of consent is eighteen. With parental consent, males can marry at age sixteen and females at age fourteen and younger parties may receive a license by reason of pregnancy or the birth of a child. Common law marriage is recognized.
SOUTH DAKOTA: The age of consent is eighteen. With parental consent, parties can marry at age sixteen and younger parties may receive a license by reason of pregnancy or the birth of a child. Common law marriage is not recognized.
TENNESSEE: The age of consent is eighteen. With parental consent, parties can marry at age sixteen. Under special circumstances, younger minors can receive a license to marry. Common law marriage is not recognized.
TEXAS: The age of consent is eighteen. With parental and judicial consent, parties can marry but not below the age of fourteen for males and thirteen for females. Common law marriage is recognized.
UTAH: The age of consent is eighteen. With parental consent, parties can marry at age fourteen. However, this parental consent is not required if the minor has already been married. In addition, each county is authorized to provide premarital counseling before issuing a marriage license to applicants under the age of eighteen and those who are divorced. Common law marriage is recognized.
VERMONT: The age of consent is eighteen. With parental or judicial consent, parties can marry at age sixteen. Common law marriage is not recognized. In addition, a Vermont law, the first in the country, permits same sex couples to be parties to a "civil union."
VIRGINIA: The age of consent is eighteen. With parental consent, parties can marry at age sixteen and under the age of sixteen may receive a license by reason of pregnancy or the birth of a child. Common law marriage is not recognized.
WASHINGTON: The age of consent is eighteen. With parental consent, parties can marry at age seventeen and at a younger age under special circumstances. Common law marriage is not recognized.
WEST VIRGINIA: The age of consent is eighteen. With parental consent, parties under the age of eighteen may receive a license at a younger age by reason of pregnancy or the birth of a child. Common law marriage is not recognized.
WISCONSIN: The age of consent is eighteen. With parental consent, parties can marry at age sixteen. Common law marriage is not recognized.
WYOMING: The age of consent is eighteen. With parental consent, parties can marry at age sixteen. They may obtain a license and marry at a younger age under special circumstances. Common law marriage is not recognized.
DISTRICT OF COLUMBIA: The age of consent is eighteen. With parental consent, parties can marry at age sixteen. However, this parental consent is not required if the minor has already been married. Common law marriage is recognized.
PUERTO RICO: The age of consent is twenty-one for males. The age of consent is also twenty-one for females who may apply for and receive a license at a younger age by reason of pregnancy or the birth of a child. Male applicants eighteen years of age and female applicants sixteen years of age may marry with parental consent. Younger males and females can marry with parental consent and receive a license by reason of pregnancy, the birth of a child, or other special circumstances. Common law marriage is not recognized.
The American Bar Association Guide to Family Law. Times Books, 1996.
Corpus Juris Secundum. Volume 55, West Publishing Co., 1948.
The Defense of Marriage Act. 28 U. S. Code 1738C. One Hundred Fourth Congress of the United States of America, 1996. Available at .
. Association of MultiEthnic Americans, Inc. (Loving Decision) 2002.
http://www.aclu.org/issues/gay/gaymar.html. "Statewide Anti-Gay Marriage Laws," American Civil Liberties Union, 1998.
http://www.law.cornell.edu/topics/Table_Marriage.htm. "Marriage Laws of the Fifty States, District of Columbia, and Puerto Rico," Legal Information Institute, 1999.
http://www.sec.state.vt.us/pubs/civilunions.htm#faq1. "The Vermont Guide to Civil Unions," Office of the Secretary of State, 2002.
West's Encyclopedia of American Law. West Group, 1998.
P O Box 23840
Little Rock, AR 72221 USA
Phone: (800) 358-6329
Primary Contact: Dennis Rainey, Director
Institute for Equality in Marriage
250 West 57th Street, Suite 2322
New York, NY 10107 USA
Phone: (212) 489-5590
Fax: (212) 489-5332
Primary Contact: Ellen Sabin, Executive Director
Marriage Ministries International (MMI)
9132 Bowles Avenue
Littleton, CO 80123 USA
Phone: (303) 933-3331
Fax: (303) 933-2153
Primary Contact: Mike and Marilyn Phillipps, Founding Directors
9311 Harrington Drive
Potomac, MD 20854 USA
Phone: (301) 469-5873
Primary Contact: Mike and Harriet McManus, Founders and Co-Chairs
The National Marriage Project
54 Joyce Kilmer Ave., Lucy Stone Hall, A347
Piscataway, NJ USA
Phone: (732) 445-7922
Primary Contact: David Popenoe, Ph.D., and Barbara Dafoe Whitehead, Ph.D., Co-Directors
Parent Liability Child's Act (Encyclopedia of Everyday Law)
Parental liability is the term used to refer to a parent's obligation to pay for damage done by negligent, intentional, or criminal acts of that parent's child. In most states, parents are responsible for all malicious or willful property damage done by their children. Parental liability usually ends when the child reaches the AGE OF MAJORITY and does not begin until the child reaches an age of between eight and ten. Laws vary from state to state regarding the monetary thresholds on damages collected, the age limit of the child, and the inclusion of PERSONAL INJURY in the tort claim. Hawaii was the first state to enact such legislation in 1846, and its law remains one of the most broadly applied in that it does not limit the financial bounds of recovery and imposes liability for both negligent and intentional torts by underage persons. Laws making parents criminally responsible for the delinquent acts of their children followed civil liability statutes. In 1903, Colorado became the first state to establish the crime of contributing to the delinquency of a minor. Today, most states have these types of laws. Children's offenses can be civil and/or criminal in nature. Civil cases are lawsuits for money damages. The government brings criminal cases for violations of criminal law. Many acts can trigger both civil and criminal legal repercussions.
A minor is a person under the age of majority. The age of majority is the age at which a minor, in the eyes of the law, becomes an adult. This age is 18 in most states. In a few other states, the age of majority is 19 or 21. A minor is considered to be a resident of the same state as the minor's custodial parent or GUARDIAN.
Each state has its own law regarding parents' financial responsibility for the acts of their children. Parents are responsible for their children's harmful actions much the same way that employers are responsible for the harmful actions of their employees. This legal concept is known a vicarious liability. The parent is vicariously liable, despite not being directly responsible for the injury. A number of states hold parents financially responsible for damages caused by their children. Some of these states, however, place limits on the amount of liability. The laws vary from state to state, but many cover such acts as VANDALISM to government or school property; defacement or destruction of the national and state flags, cemetery headstones, public monuments/historical markers; also, property destroyed in hate crimes, based on race or religion, such as ransacking a synagogue. Personal injury in connection with any of these may also be included.
Each year thousands of teenage girls, some as young as 12, enter into the AFDC system because they become pregnant. These girls are eligible to receive welfare benefits for their children because the fathers are almost always noncustodial. Many of the fathers are also teenagers still attending high school and are frequently unable to pay CHILD SUPPORT because of their lack of income. These cases, commonly called "minor-mother" cases, are automatically referred to the state child support enforcement agency by the welfare department. When the agency receives a minor-mother referral, it begins LEGAL PROCEEDINGS against three parties: the father of the minor-mother, the mother of the minor-mother, and the father of the minor-mother's child. Because the parents of minor-mothers are legally responsible to support their daughters until EMANCIPATION, they must pay child support for their minor-mother daughters. The Welfare Reform Act has enacted important changes for teenage parents and minor-mothers. In order for a minor-mother to be eligible to receive AFDC benefits, she must enroll in high school or a state-approved GED program and live under adult supervision. The Welfare Reform Act has thus eliminated the enticement of physical and financial independence from one's parents. Another significant change implemented by the Welfare Reform Act is that parents of a noncustodial teenage father (the grandparents of the minor-mother's child) are liable to pay child support until their teenage son emancipates, if the minor-mother receives welfare. Prior to enactment of the Welfare Reform Act, grandparents were never liable to pay child support for their grandchildren, and the government could not collect child support from a minor-father until he became employed.
Additionally, the parents of a minor teenage noncustodial parent may face PATERNITY action requests for child support from them, rather than the father of the newborn. When a minor child gives birth, that minor child is responsible for her baby, and the minor's parents remain responsible for her. However, if the young person under the age of 18 continues to live at home, the grandparents' income will be "deemed available" to the grandchild to determine eligibility for Temporary Assistance to Needy Families (TANF), and the mother may seek through the court to have the paternal grandparent's income "deemed available" for child support purposes.
A parent is liable for a child's negligent acts if the parent knows or has reason to know that it is necessary to control the child and the parent fails to take reasonable actions to do so. This legal theory is known as negligent supervision. Liability for negligent supervision is not limited to parents. Grandparents, guardians, and others with CUSTODY and control of a child may also be liable under these circumstances. There is usually no dollar limit on this type of liability. An umbrella or homeowner's insurance policy may offer the adult some protection in a lawsuit.
Family Car Doctrine
The family car doctrine holds the owner of a family car legally responsible for any damage caused by a family member when driving if the owner knew of and consented to the family member's use of the car. This doctrine is applied by about half of the states. Thus, even if a parent does not have a minor household member listed on the auto insurance policy, under the family car doctrine, the adult remains liable. Most insurance policies have special provisions for members of the household under eighteen. Typically, minor drivers must be included on the policy. The car owner would not be able to invoke the uninsured motorist provision for a minor child driver residing in the insured's household, driving the insured's vehicle.
Although some states impose criminal liability on parents of delinquent youth, many more have enacted less stringent types of parental responsibility laws. Kansas, Michigan, and Texas require parents to attend the hearings of children adjudicated delinquent or face CONTEMPT charges. Legislation in Alabama, Kansas, Kentucky, and West Virginia requires parents to pay the court costs associated with these proceedings. Other states impose financial responsibility on parents for the costs incurred by the state when youth are processed through the juvenile justice system. Florida, Idaho, Indiana, North Carolina, and Virginia require parents to reimburse the state for the costs associated with the care, support, detention, or treatment of their children while under the supervision of state agencies. Idaho, Maryland, Missouri, and Oklahoma require parents to undertake RESTITUTION payments.
Child Access Protection Laws
Some states have laws which hold parents liable when children gain access to a firearms. At least nine states hold adults criminally responsible for storing a loaded firearm in such a way as to allow a minor to gain access. Some of these provisions include an enhanced PENALTY if the minor causes injury or death and create exceptions for parental liability when the minor gains access to a weapon by unlawful entry into the home or place of storage or if the firearm is used in SELF-DEFENSE. In addition, several states have provisions that create criminal liability when a custodial adult or parent is aware that his or her child possesses a firearm unlawfully and does not take it away. A number of jurisdictions have enacted laws making it a crime to leave a loaded firearm where it is accessible by children. Typically, these laws apply, and parents can be charged, only if the minor gains access to the gun. There are usually exceptions if the firearm is stored in a locked box, secured with a trigger lock, or obtained by a minor through unlawful entry. In most states, the penalty for unlawful access is a MISDEMEANOR unless the minor injures someone else, in which case the parent can be charged with a FELONY.
In addition to Access Protection Laws, some states hold parents responsible for paying restitution as well as criminal fines where crimes are committed by minors. Once a minor becomes involved in the juvenile justice system, parents may find themselves reimbursing the state for costs associated with their child's prosecution and rehabilitation. Minors who run away from home, exhibit chronic truancy, or refuse to obey their parents are classified by many states as incorrigible. Incorrigible minors are often referred to as status offenders because they would not be in court but for their status as minors. When a minor commits a criminal act that would still be a crime if committed by an adult, most states will classify the minor as a juvenile delinquent.
Since homeowners insurance includes both property and liability coverage, wrongful acts of children or negligent supervision claims may be covered even if the act took place away from a policyholder's residence. Homeowner's policies typically cover legal liability in the event that anyone suffers an injury while on the insured property, even if the injury was committed by another household member or the result of NEGLIGENCE on the part of the policyholder.
Selected State Laws
ARIZONA: Parents are liable for intentional acts of their children that injure others or damage their property. Parents can be held automatically liable for up to $10,000 in damage. Although not automatic, under some circumstances, this legal responsibility may extend to the full value of the victim's damages.
CALIFORNIA: Parents are responsible if the parent has knowledge of the child's potential for misconduct and fails to take reasonable steps to prevent such misconduct; if the parent has signed the child's driver's license application or the child drives the parent's car with the parent's knowledge and permission; if the child is guilty of willful misconduct; or if the child is given ready access to a firearm.
ILLINOIS: It is illegal for a person to store or leave any loaded firearm in a way that allows a minor to gain access to the firearm without permission from a parent or guardian and use it to injure or kill. A firearm is properly stored if it is secured by a trigger lock, placed in a securely locked box, or placed in some other location that a reasonable person would believe to be secured from a minor.
INDIANA: If the juvenile is adjudicated a delinquent, the parents or custodians of the juvenile may be required to participate in programs of care, treatment, or rehabilitation for the juvenile and will be held financially responsible for any services provided. These costs may include the costs incurred by the County on behalf of the juvenile for attorneys, institutional or foster care placement, detention, inpatient/outpatient treatment, or counseling. It may also include the costs of returning the child from another JURISDICTION and court costs associated with the juvenile proceedings. If the parent or guardian defaults in reimbursing the county or fails to pay any fee required, the Juvenile Court may find him/her in contempt and may enter judgment for the amount due. A parent is liable to another person for up to $5,000.00 in actual damages arising from harm to person or property caused by a child in their custody and may be fully liable for all actual damages resulting from gang activity.
MASSACHUSETTS: It is unlawful to store or keep any firearm, rifle, or shotgun including, but not limited to, large capacity weapons or machine guns in any place unless such weapon is secured in a locked container or equipped with a tamper-resistant mechanical lock or other safety device, properly engaged so as to render such weapon inoperable by any person other than the owner or other lawfully authorized user. Dealers must conspicuously post at each purchase counter the following warning in bold type not less than one inch in height: "IT IS UNLAWFUL TO STORE OR KEEP A FIREARM, RIFLE, SHOTGUN OR MACHINE GUN IN ANY PLACE UNLESS THAT WEAPON IS EQUIPPED WITH A TAMPER-RESISTANT SAFETY DEVICE OR IS STORED OR KEPT IN A SECURELY LOCKED CONTAINER." Each dealer must provide the warning, in writing, to the purchaser or transferee of any firearm, rifle, shotgun, or machine gun in bold type not less than one-quarter inch in height.
MISSOURI: Parents may be liable in an amount up to $2,000 under the parental liability STATUTE. Parents may be liable for greater amounts if the court determines that the child's actions were a result of parental negligence. The child must act purposely before the parent is liable.
TEXAS: It is a misdemeanor offense when a child gains access to a firearm because an adult fails to secure a readily dischargeable firearm or left the firearm in a place to which the person knew or should have known that a child could gain access. It also requires firearms dealers to post a sign with this warning: "It is unlawful to store, transport, or abandon an unsecured firearm in a place where children are likely to be and can obtain access to the firearm."
VIRGINIA: It is a misdemeanor to recklessly leave a loaded firearm so as to endanger the LIFE OR LIMB of any child under the age of fifteen.
Jack and Jill, Why They Kill. Shaw, James, Onjinjinkta Publishing, 2000.
Juvenile Crime. Ojeda, Auriana, Gale Group, 2001.
American Bar Association
750 N. Lake Shore Dr.
>Chicago, IL 60611 USA
Phone: (312) 988-5603
Fax: (312) 988-6800
Child Welfare League of America
50 F Street NW, 6th Floor
Washington, DC 20001-2085 USA
Phone: (202) 638-2952
Fax: (202) 638-4004
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National Association of Child Advocates
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Washington, DC 20005-1202 USA
Prenuptial Agreements (Encyclopedia of Everyday Law)
A prenuptial agreement is a contract between two persons who are planning to marry. Prenuptial agreements are often called premarital agreements, and, if entered into subsequent to the marriage, postmarital or antenuptial agreements. These types of contracts typically set forth the rights that each party has to the other's property. Couples can enter into prenuptial agreements prior to a first marriage or prior to a subsequent marriage after death or DIVORCE of a prior spouse. Premarital agreements become operative in the event of divorce or the death of one spouse.
Prenuptial agreements can avoid uncertainty about how a judge would divide property and decide spousal support if the marriage ends in divorce. Either party may be seeking to avoid a major loss of assets, income, investments, or a business in the event of a divorce. People marrying for a second or third time often want to make their children the beneficiaries of all of their assets, rather than have the property pass to a second spouse and that spouse's offspring from a prior marriage. A valid prenuptial agreement will generally supersede whatever state law exists regarding PROBATE or divorce issues.
Requirements for Prenuptial Agreements
In general, as with any contract, in order to be valid, a prenuptial agreement must be in writing and signed by the parties. In most states, the parties must fully disclose all income and assets to the other party. In a few states, it may be possible to waive a full disclosure of income and assets, but the spouse waiving that right must do so knowingly. If it is difficult to determine the exact validity of all of the assets, for example in a small family-owned business, the agreement should acknowledge some type of approximate value.
Additionally, the terms of the agreement must be reasonable. An agreement cannot be unusually harsh and unfair or the court will likely decline to uphold it. Blatantly unfair agreements are termed unconscionable agreements. Usually this means no reasonable person would enter into agreement with such terms. If a court finds an agreement to be unconscionable, the agreement will not be enforced.
Finally, both parties must have a fair opportunity to review the proposed agreement and to have independent legal COUNSEL. While an agreement where both parties did not hire counsel is not necessarily invalid, hiring attorneys is another step that can demonstrate to the court that the agreement is fairly drafted and that both parties are making informed decisions. This is particularly true if two attorneys negotiate the agreement drafting and redrafting various provisions to the satisfaction of the parties.
Provisons of a Prenuptial Agreement
Although each couple will have different circumstances, prenuptial agreements generally address a number of different aspects of the couple's agreement. These usually include the following:
The agreement should have an inventory, often attached as an exhibit to the agreement of each party's property, assets and debts which will be brought into the marriage.
Character of Property
The agreement should specify the character of certain types of property, whether they will be owned as marital or separate property, or a combination thereof. This would include investment earnings from property previously owned, the earnings of each spouse, and any subsequent INHERITANCE. The agreement should also set forth how property will be distributed in the event of death of either spouse or in the event of divorce.
The agreement should also specify the level (if any) of spousal support in the event of divorce. State laws do not set a specific amount of support that must be provided for premarital agreements. Many courts will apply broader notions of fairness and require support at a level higher than subsistence, so the level of support must be reasonable given the party's circumstances.
An escalator clause increases the amount of assets or support given to one spouse based on the length of the marriage or sometimes on a significant increase in one spouse's assets or income. If one spouse is concerned that assets or income could devalue in the future, that spouse could include a provision that the amount of property given to the other spouse would never exceed a certain percentage of the entire value of all the assets.
A prenuptial agreement can be contested, not simply during a divorce of the parties, but by the children or parents of a deceased spouse. The party contesting the agreement is usually seeking to have it declared void so that the existing probate or divorce laws will apply. Claims may be made that a spouse did not fully understand the agreement or that one spouse forced the other, physically or mentally do sign the agreement. A challenge of this type is often termed DURESS. To avoid this sort of challenge, the couple should enter into the agreement well before the wedding. While most jurisdictions do not specify a particular time frame, the more time the couple has to review and consider the provisions of the agreement, the more chance a court would find it voluntary. While an agreement proposed and signed a day or two before the wedding is not PER SE invalid, it may be a factor, which the court considers in deciding whether to uphold the agreement at a later date.
Other grounds for contesting an agreement may be that some misrepresentations took place which induced one spouse to sign the agreement. One spouse may have made misrepresentations about the agreement itself, perhaps that it was nonbinding, only for tax purposes, or temporary. The agreement may also face a serious challenge if all assets were not fully disclosed. Although this is another form of misrepresentation, a challenge of this sort is typically termed FRAUD. An agreement may well be invalid on this basis if one spouse intentionally misrepresents certain aspects of income or assets.
Another theory used to contest prenuptial agreements is that one spouse lacked capacity. If a party was ill, taking medication, which affected mental capacity, or was intoxicated by alcohol or influenced by other drugs, the agreement may not be valid under the rules of basic contract law.
Child Custody and Child Support
A prenuptial agreement may contain provisions regarding CHILD CUSTODY, visitation, and CHILD SUPPORT; however, a divorce court would not be bound by such provisions. Courts have the power to decide on child CUSTODY, visitation rights, and child support. The court would look with particular disfavor on these provisions for children of both parties who were not even born at the time of the prenuptial agreement.
Postmarital or antenuptial agreements are drafted after the marriage has taken place but before either party separates, divorces, leaves, or dies. These contracts contain provisions similar to those in premarital contracts. Courts look carefully at these types of agreements since once the marriage has taken place it is sometimes the case that one of the parties is unwilling to enter into the agreement. A postmarital agreement may alter the rules for the division of property between the spouses in the event of divorce or death. A married couple may seek to enter into a postmarital agreement after a significant financial change or after a reunification subsequent to a separation. A Marital SETTLEMENT Agreement is a particular form of postmarital agreement that specifies the distribution of property and responsibility for debt between the respective spouses as part of a divorce.
Living Together Agreements
The same concerns and considerations by couples who do plan to marry and who draw up a premarital contract apply to couples who plan never to marry. There is nothing illegal about an unmarried couple living together. Any governmental interference with a couple's right to live together would be considered a violation of the couple's right to free association under the First Amendment to the United States Constitution. An unmarried couple living together can enter into an agreement to share expenses or acquire property, including real estate. An unmarried couple can also enter into a trust, which would allow for a more specific distribution of certain assets and would protect the couple in the event of DISABILITY or incapacity of one of the partners.
There are two legal theories with respect to engagement rings. One theory is that an engagement ring is a gift and belongs to the person receiving it. The other theory is that an engagement ring is a conditional gift, a gift given in anticipation of marriage. Under this theory, if the marriage will not take place, the condition upon which the gift was given has been removed, and the ring belongs to the giver. A number of court cases have actually addressed this issue. In some states, if the person who gave the ring broke off the engagement, the person who received the ring is entitled to keep it. Since property which is a gift is generally considered separate property, once the marriage takes place, the ring then belongs to the wearer even if the marriage ends in divorce.
When a couple enters into a prenuptial agreement, the parties may also sign other documents relating to probate concerns and plans. The couple may contract to make a will or a trust with particular terms once they are married. (Signing new wills at the same time as a prenuptial agreement is an option; however, once the marriage takes place, the wills would need to be redrafted to reflect the marriage in order for the terms to remain valid.) The couple may choose to create a trust to manage certain aspects of estate planning. A trust created in connection with a PREMARITAL AGREEMENT might be used as a tool to manage and protect the assets of each spouse, as well as to establish a fund for the benefit of the less wealthy spouse. The prenuptial agreement might provide that in the event of divorce or death, the less wealthy spouse's entitlement to assets might be limited to the money or property in the trust.
In many estate plans, the Trust is the central tool that is used to control and manage property. A Trust continues despite the incapacity or death of the grantor. It determines how a TRUSTEE is to act with respect to the Trust estate. It determines how property is to be distributed after the death of the grantor. A properly drawn Trust is a separate entity that does not die when the creator dies. The successor Trustee can take over management of the Trust estate and pay bills and taxes and promptly distribute the Trust assets to the beneficiaries, without court supervision, if the Trust agreement gives the Trustee that power. Trusts, unlike Wills, are generally private documents. The public would be able to see how much the descendent owned and who the beneficiaries were under a Will, but typically not with a Trust. Like a Will, however, a Trust can be used to provide for minor children, children from a prior marriage and a second spouse in the same trust, transfer a family-operated or closely-held business, provide for pets, provide for charities and can remove life insurance benefits from a taxable estate, while still controlling the designation of insurance beneficiaries.
Complete Premarital Contracting: Loving Communication for Today's Couples. Rickard, Jacqueline, Evans, 1993.
Cupid, Couples, & Contracts: A Guide to Living Together, Prenuptial Agreements, and Divorce. Wallman, Lester, Master Media, 1994.
American Bar Association
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Phone: (312) 988-5603
Fax: (312) 988-6800
The Elder Law Project Legal Services For Cape Cod And Islands, Inc.
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National Academy of Elder Law Attorneys, Inc.
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Unmarried Parents (Encyclopedia of Everyday Law)
Children born out of wedlock are entitled to the same rights and protections as children born in wedlock. Unmarried fathers have rights and duties similar to those of married fathers. One of the most important legal responsibilities of parents is supporting their children. Parents are legally obligated to provide their children with all the necessities of life. The failure of parents to marry does not affect their responsibility to support their children. If parents are unmarried and cannot agree upon how much each should contribute toward the support of their children, the courts may decide. A court can order one parent to make specified payments to the other for CHILD SUPPORT.
State laws provide that biological parents make all the decisions involving their children, including education, health care, and religious upbringing. Parents are not required to secure the LEGAL RIGHT to make these decisions if they are married and are listed on the child's birth certificate. However, if there is disagreement about who has the right to make these decisions courts can decide.
Unmarried Parents Living Together
Couples who are living together but are not married should take steps to ensure that both are recognized as the legal parents. Both parents can be listed on the birth certificate. A parent who is not listed can be added after the birth of a child if the parent contacts the state Bureau of Vital Statistics in which the birth took place. Most states require unmarried fathers to sign an AFFIDAVIT or acknowledgment of PATERNITY.
A paternity action is a legal proceeding that allows unmarried parents to resolve issues about CHILD CUSTODY and visitation similar to those dealt with in a DIVORCE proceeding. Establishing paternity means establishing the identity of the child's father. A father can acknowledge paternity by signing a written admission or voluntary acknowledgment of paternity. All States have programs under which birthing hospitals give unmarried parents of a newborn the opportunity to acknowledge the father's paternity of the child. States must also help parents acknowledge paternity up to the child's eighteenth birthday through vital records offices or other entities designated by the State. Parents are not required to apply for child support enforcement services when acknowledging paternity.
Paternity cases do not have to involve a dispute between the parties about who the father is. Sometimes the parties will stipulate that they are the parents of the child. If however, parentage is an issue in the case, then it must be handled prior to addressing other matters such as support and visitation. Paternity establishment can provide basic emotional, social, and economic ties between a father and his child. Once paternity is established, a child gains legal rights and privileges. Among these may be rights to INHERITANCE, rights to the father's medical and life insurance benefits, and to social security and possibly veterans' benefits. The child also has a chance to develop a relationship with the father and to develop both a sense of identity and connection. It may be important for the health of the child for doctors to have knowledge of the father's medical history.
Paternity can be determined by highly accurate tests conducted on blood or tissue samples of the father, or alleged father, mother and child. These tests have an accuracy range of between 90 and 99 percent. They can exclude a man who is not the biological father and can also show the likelihood of paternity if he is not excluded. Each party in a contested paternity case must submit to genetic tests at the request of either party. If the father could be one of several men, each may be required to take a genetic test. It is almost always possible to determine who fathered a baby and to rule out anyone who did not. There are several different ways to establish whether an alleged father is the natural and legal father of the minor child.
Paternity blood testing was first performed in the middle half of the twentieth century by comparing blood types of tested parties. This involved isolation of blood sera from antigen-challenged individuals that did not possess certain red blood cell antigens. These antigens are protein molecules that may be combined with sugar molecules and reside in the red blood cell membrane. These sera cause coagulation of red blood cells in individuals that possess that particular red blood cell antigen. In the ABO blood typing system, humans can possess the A antigen (A blood type), the B antigen (B blood type), both the A and B antigen (AB blood type), or neither of these antigens (O blood type). Red blood cell antigen systems of this sort can be used for paternity testing because there are genes that code for the antigens and these are inherited genes. A mother who has Type B blood and a father who has Type O blood could not have a child who has type AB blood. The true father of the child must have the gene for the A antigen. Using RBC antigen systems for paternity testing did not provide for a very powerful test because the frequencies of the genes that coded for the antigens are not very low.
In the 1970s a more powerful test using white blood cell antigens or Human Leukocyte Antigens (HLA) was developed. This produced a test that was able to exclude about 95 percent of falsely ACCUSED fathers. Several milliliters of blood are required to perform the test. Blood types can not be used to determine who the father is; however, blood types can be used to determine the biological possibility of fatherhood.
DNA (Deoxyribonucleic Acid) is the genetic material present in every cell of the human body. Except in the case of identical multiple births, each individual's DNA is unique. A child receives half of his or her genetic material (DNA) from the biological mother and half from the biological father. During DNA testing, the genetic characteristics of the child are compared to those of the mother. Characteristics that cannot be found in the mother must have been inherited from the father. DNA paternity testing is the most accurate form of paternity testing possible. If DNA patterns between the child and the alleged father do not match on two or more DNA probes, then the alleged father can be totally ruled out. If the DNA patterns between mother, child, and the alleged father match on every DNA probe, the likelihood of paternity is 99.9 percent. Either a blood test known as Restriction Fragment Length Polymorphism (RFLP) or a procedure called a Buccal scrap is used for DNA testing. A swab is rubbed vigorously against the inside of the subject's cheek. This provides a DNA sample for testing. Children can be tested at any age. Paternity testing can even be done on an umbilical cord blood specimen at birth. DNA testing is one of the easiest medical procedures for children. Since DNA is the same in every cell of the human body, the accuracy of testing performed on cheek cells utilizing the Buccal Swab is the same as an actual blood sample.
Custody and Visitation
In most states, when a child born to an unmarried mother, if there is no ADJUDICATION or registration of paternity, the mother has CUSTODY. Once paternity has been established, a father has the right to seek custody of or visitation with his child. Even after paternity has been adjudicated or registered, as long as there is no court order on custody, many states presume that the mother has custody of the child. A custody agreement between the parents or a court order can clarify custody and visitation issues. Unmarried parents without custody are entitled to the same visitation rights as divorced parents, absence extraordinary factors such as abuse or DOMESTIC VIOLENCE.
Modern medicine and science have allowed 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 regarding the child's status and the rights and designation of the parents.
When a married woman, with the consent of her husband, conceives a child by artificial insemination from a DONOR other than her husband, the law generally recognizes the child as the husband's legitimate child. Most states have presumption laws which presume a child born to a married woman is the child of her husband, and the designation of the husband as father in a case involving artificial insemination derives from those laws.
Invitro fertilization and egg transplantation involves the fertilization of the egg outside the womb. Where the egg is donated by another woman, the birth mother will be treated in law as the legitimate mother of the child.
Undoubtably a legally complex area is that of surrogate motherhood. In the most common arrangement, a married couple in which the husband is fertile but the wife is unable to carry a pregnancy, enter into a privately arranged contract with a fertile woman. This fertile woman (the surrogate mother) agrees to be artificially inseminated with the sperm of the fertile husband. Alternatively, the surrogate mother may be impregnated with an embryo produced by the wife's ovum. In either case, the surrogate mother carries the pregnancy until delivery, and then, per the contract, assumes no parental rights or responsibilities and relinquishes the infant to the couple initiating the contract. These reproductive arrangements enable one woman to bear a child for another, thus separating genetic, gestational, and rearing parentage. Surrogate motherhood raises medical, psychological, ethical, and legal questions involving procreative privacy and the nature of parenting and family life.
The desire to have a child who is genetically related to at least one parent may make surrogacy a more attractive option than ADOPTION for some couples. When women take on the role of surrogate mother to assist members of their own family, few legal complications arise. In some cases where women have agreed to the procedure for financial compensation, major legal issues have arisen. About half the states have laws which address surrogacy. In some states, surrogate mother contracts are illegal and entering into them can result in criminal charges. Other states rule that such contracts are invalid.
In an artificial insemination case, in which the husband is the donor to the surrogate, a court order can be obtained prior to the birth of the child that the husband is the father of the child. After the child is born, the surrogate mother signs consent forms which either terminate her parental rights, leaving the man with sole custody of the child or which allow the wife of the couple to adopt. In a case involving egg fertilization outside the womb and an embryo transplant to the womb of the surrogate, a pre-birth court order can be obtained indicating that the couple is the child's biological parents. In this case, no adoption is necessary.
Federal welfare law requires minor custodial parents receiving cash assistance to attend school and live with their parents or in an adult-supervised setting. Congress established these requirements as part of the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), which created the program for Temporary Assistance for Needy Families (TANF) and abolished the Aid to Families with Dependent Children (AFDC) program. A number of States have also established similar requirements.
Welfare policies that apply specifically to teenage parents pose a special challenge, because many young parents do not head their own cash assistance case. When an assistance case includes an older adult, an adolescent, and a very young child, it is often unclear whether the adolescent or the older adult is the parent of the young child, at least for assistance purposes. States are not supposed to use TANF block grant funds to provide financial assistance to unmarried minor custodial parents who do not have a high school diploma or its equivalent unless they are attending school. To meet this requirement, state welfare agencies must define school attendance requirements, obtain attendance information, and follow up with teenager parents who fail to attend school.
The parents (as recognized by law) of a child are allowed to name the child whatever they choose. This is true for the first, middle and last names. A child is not required to have the last name of the father, or of either parent. Unmarried parents may give the child the last name of the father on the theory that a name is something inherited and passed down through paternal lineage. Unmarried parents may give the child the last name of the mother on the theory that if men were the ones spending numerous hours in labor, they would hardly be naming their children after women. The parents may select a hyphenated name or an entirely unrelated name.
If a couple is unmarried, only one person can claim the child as a dependent for income TAX RETURN purposes in any given year. An unmarried couple can alternate years or decide that the person with the higher income takes the tax DEDUCTION. While both parents may be entitled to claim a child, only one person can legally take the exemption each year.
Cupid, Couples, & Contracts: A Guide to Living Together, Prenuptial Agreements, and Divorce Wallman, Lester, Master Media, 1994.
Joint Custody with a Jerk: Raising a Child with an Uncooperative EX Ross, Julie, St. Martin's Press, 1996.
750 N. Lake Shore Dr.
Chicago, IL 60611 USA
Phone: (312) 988-5603
Fax: (312) 988-6800
Child Welfare League of America
50 F Street NW, 6th Floor
Washington, DC 20001-2085 USA
Phone: (202) 638-2952
Fax: (202) 638-4004
National Association of Child Advocates
1522 K Street, NW, Suite 600
Washington, DC 20005-1202 USA