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How have the issues judged under family law changed over time?

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Karyth Cara eNotes educator | Certified Educator

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The issues judged under Family Law in the U.S. have changed through changing legal definitions of family law terms and through changing dynamic of court procedures. Family law in the U.S. has its roots in European feudalism, introduced into England by William the Conqueror at the Norman Conquest of 1066, English common law, Catholic canonical law and, increasingly, which is a significant change, civil law.

  • Feudalism: a system of hierarchical authority with king and nobles at the top and peasants at the bottom.
  • Common law: a system of uncodified (no legal code) rules and statues built through traditions and precedents of judges' decisions over time.
  • Canonical law: a system of ecclesiastical (religious) law and regulations that is based on religious doctrine and writings but that also borrows from civil law while simultaneously influencing both common and civil law.
  • Civil law: a system of codified law that is comprehensive and updated and applicable to all matters, procedures and punishments capable of being attended to in court.

Family matters in pre-Conquest Anglo-Saxon England were private and had no legal governance, which means that marriage did not change the definitions of identity for women or children. After the Conquest, French common law, derived in part from feudalism, applied to family matters. As a result women and children lost their individual identities and became chattel of the male and husband: the identity of the wife and their children was merged with the identity of the husband and father such that he was the only one with legal identity or legal authority to own, buy, sell, or make legally recognized decisions. Widows retained their husbands identities thus gained some legal rights.

Family law in our contemporary age is characterized by change that is in the process of developing new definitions of relationships, marriage, divorce or dissolution, custody and visitation, and financial support in dissolved relationships. Major changes have developed since the latter half of the twentieth century and continue to develop into the present decade, since 2011.

  • Relationships are being redefined to include couples who do not marry and couples who are of the same sex.
  • Marriage is being redefined after a journey through several stages, including partner registries for same-sex and opposite-sex couples registering as "domestic partners" who did not marry but whose registry allowed them equal legal rights with married couples.
  • Divorce has been redefined to eliminated the need to prove "fault": all states now have "no fault" divorces where no legal wrongdoing needs to be proven. Divorce is being further redefined so as to remove it from the common law adversarial system (winner/loser) and to reestablish it as a mediated process where contractual agreements are reached. For couples who do not marry, dissolution of their union is being incorporated into family law, thus changing it by adding a new category.
  • Historically, after 1066, custody of children went to the father as the only parent having legal or authoritative identity. After the Civil War in the U.S., custody began to go to the mother based on the principle of the "tender years" and "best-interest-of-the-child" doctrines which gave presumptive custodial right to the mother. In contemporary times, custody has been redefined to emphasize joint custody and paternal custody. In the aftermath of all the problems these judgements have raised, new laws have been enacted in the U.S. and internationally to protect children from abduction, including the 1997 U.S. Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) and the 1980 Hague Convention on the Civil Aspects of International Child Abduction, adopted by the U.S. in 1980.
  • Visitation following divorce in a marriage, once divorce became common, was given to the non-custodial parent, often the father. In our contemporary times, visitation is being redefined to include legally mandated visitation for grandparents, as in Troxel, and other persons with an interest in the child's well-being, such as a surrogate mother as in BABY M.
  • Financial support of ex-spouses and of children is being redefined to include palimony (alongside traditional alimony) for non-married domestic partners who are either opposite-sex or same-sex couples. It is also being redefined in terms of procedure so that legal oversight ensures the prompt payment of child support: employers are required by law to deduct support amounts; the IRS is required to withhold past due support from tax returns at the end of each fiscal reporting year. 

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mizzwillie eNotes educator | Certified Educator

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The issues under family law have changed a great deal as the definition of family has changed.  Questions before the courts have to deal with same-sex marriage and their children if the marriage dissolves, children being raised by grandparents and what that should entail, children being raised in homes where the one parent there is mentally ill and presents a danger to the health of the children such as a hoarder where mice etc are in the home among the garbage, and what to do with children whose parent or parents are in jail.  Families no longer look as the ideal once believed of one mother, one dad, and two children with one parent staying home to take care of the children.  In these times, both parents work to survive and often children are left alone in the care of the oldest child who may be as young as seven.  Family  court has become a problem solving court trying to find the best solution for the children when the options are limited.  I have a gay brother who has a step daughter from a one time marriage who depends on him for advice and help.  He truly is a father to her, and yet has no legal right to say anything.  As she is now of age, she can choose, and calls him dad, living with him when circumstances demand and on her own when she can manage.  The issues family law must confront change with every change in society.

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