SOME CURRENT ISSUES IN FAMILY LAW

Some Current Issues In Family Law

Family Law

Introduction

Family law is the body of law that governs the relationships between individuals involved in long-term, intimate relationships. The central relationships of concern are those of parent and child and spouse and partner. Although the law does not create these relationships, legal recognition of some relationships and the corresponding nonrecognition of others have enormous consequences. For example, a woman may give birth to a child and, by virtue of having given birth, she may be recognised as the legal mother of that child. Through specified actions, her legal rights can be terminated and another person may be assigned those rights. This is what happens in adoption. After the adoption is completed, the law recognises the adoptive parent or parents as the legal parents of the child. The original mother's legal relationship with the child is no longer recognised (Polikoff, 2000).

People may establish relationships that closely resemble legally significant relationships, but the law may not recognise those relationships (Blair, 2003). For example, a person may raise a child and be, for all social purposes, the parent of that child. But the person may not have the legal status of a parent and is therefore, in the eyes of the law, a stranger to the child. In other words, legal status does not necessarily follow from social status (Laing, 2003).

In any given society, family law reflects both the reality of the human relationships common in that place and time and the ideal relationships the society wants to promote. Thus, current law typically recognises the status of unmarried fathers as parents (a reflection of reality) but also privileges marital parenthood (a reflection of the ideal marital family) (Glendon, 2006). Family law is thus both pragmatic and idealistic and, accordingly, is both influenced by and influences gender relationships. This entry provides an overview of the structure of family law, its connection to primary relations including intimate couples and parents and children, and current trends in family law.

The Structure Of Family Law

Historically, British family law has exclusively been a creature of the states. Each state, whether through legislative action or judicial decisions, has developed its own body of law governing the formation, recognition, and dissolution of families. It has been seen as “local” law, with variation among the states deemed to be desirable (Williams, 2002).

State versus Federal Law

As the current discussions around access to marriage for lesbian and gay couples demonstrate, family law can vary significantly from state to state. Laws governing entrance into and exit from marriage, the existence of parent-child relationships, entitlement to custody, the treatment of unmarried couples, and so on differ from state to state. The variations in state treatment create complex problems for families who move during family relationships. This variation among the states is not a modern phenomenon. The variation in state law regarding interracial marriages was equally, if not more, profound and endured for a hundred years (Nanlohy, 2002).

Application of federal law frequently requires assessment of family ...