The Psychology of Family Law

Eve M. Brank

• Publisher: NYU Press
• Year: 2019
• Print ISBN: 9781479824755
• eBook ISBN: 9781479870769
• Topic: Psychology
• Subtopic: Family Law
• Index: Psychology

Winner, 2021 Lawrence S. Wrightsman Book Award, given by the American Psychology-Law Society

Bridges family law and current psychological research to shape understanding of legal doctrine and policy

Family law encompasses legislation related to domestic relationships—marriages, parenthood, civil unions, guardianship, and more. No other area of law touches so closely to home, or is changing at such a rapid pace—in fact, family law is so dynamic precisely because it is inextricably intertwined with psychological issues such as human behavior, attitudes, and social norms. However, although psychology and family law may seem a natural partnership, both fields have much to learn from each other. Our laws often fail to take into account our empirical knowledge of psychology, falling back instead on faulty assumptions about human behavior.

This book encourages our use of psychological research and methods to inform understandings of family law. It considers issues including child custody, intimate partner violence, marriage and divorce, and child and elder maltreatment. For each topic discussed, Eve Brank presents a case, statute, or legal principle that highlights the psychological issues involved, illuminating how psychological research either supports or opposes the legal principles in question, and placing particular emphasis on the areas that are still in need of further research.

The volume identifies areas where psychology practice and research already have been or could be useful in molding legal doctrine and policy, and by providing psychology researchers with new ideas for legally relevant research.

1

Barriers to Marriage

Kathy Landin, writer for thefw.com, provides a story (with pictures) of the “15 weirdest marriages.”1 The marriages are between people and animals,2 people and themselves,3 and people and inanimate objects, such as the Eiffel Tower4 and a roller coaster.5 Amy Wolfe fell in love with a roller coaster. She taped pictures of the ride on her bedroom ceiling and carried in her pocket nuts and bolts from it.6 To Ms. Wolfe, her marriage to the 1001 Nachts in Knoebels Amusement Park feels natural and similar to any other marriage.7 Notably, her marriage and the other marriages mentioned earlier did not occur in the United States and are not legally binding. They do, however, demonstrate for some a more expansive informal definition of marriage than historically conceived within the law.8

Traditionally, there has been a set of formal requirements for a marriage. The most basic requirements of a valid marriage are a license and a wedding ceremony between two competent individuals conducted by an officiant.9 Aside from age requirements, the legal standard for competency to marry is quite low. A person must only understand the concept of marriage. A person under conservatorship or deemed legally incompetent for other purposes may still be able to marry.10

Today in the United States, individual states hold the power of marriage regulation and deciding who can and cannot get married;11 there is technically no uniform national-level family law doctrine. Supreme Court Justice Hugo Black said that “the power to make rules . . . is for the legislatures, not the life-tenured justices.”12 Yet, despite the Supreme Court’s insistence on state control,13 its holdings continue to shape and change state law.14 The Supreme Court’s reasoning for involvement is generally one of protecting family privacy from state interference.15 Interestingly, one rationale for vesting family law within the states was to permit states to experiment and base their laws on local social conditions.16 True experimentation has been lacking; instead, most laws and court opinions about marriage barriers are based on legislative or judicial intuition.17

Past Barriers

Physical and Mental Conditions

Well into the 20th century, U.S. states placed restrictions on who could marry because of their mental or physical conditions.18 Insomuch as marriage was the route to reproduction, states forbade individuals who did not have a sound mind from marrying as a way to restrict those individuals from procreating.19 For example, cognitive and physical conditions such as being “a common drunkard, habitual criminal, epileptic, imbecile, feeble-minded person, idiot or insane person” prohibited individuals from marriage in Washington State.20 Even by the 1950s, 17 states restricted marital access from people with epilepsy.21 Washington and other states furthered their eugenics crusade by restricting marital access from those with tuberculosis and venereal diseases. These laws required medical exams to certify the betrothed were free from contagions such as gonorrhea or syphilis. States have removed these health test requirements but some only as recently as the turn of the 21st century.22

Mental capacity restrictions still remain insomuch as they relate to a person’s competency to enter into a contractual relationship.23 Otherwise, the general restrictions of marriage for the mentally ill are gone. But, again, those restrictions have only recently lifted.24 Similarly, for individuals with developmental disabilities, the question now is not whether they will pass on their developmental disability if they have offspring but whether they can comprehend and function within the marital agreement.25 In less than a century, the United States has moved from sterilization and restricting developmentally disabled adults from marriage to statutes assuming their marriages are valid.26 Today, developmental disabilities do not preclude marriage or parenting, and that change can largely be attributed to the work of the social science and medical communities, which have been able to establish safeguards and interventions that allow those with developmental disabilities to thrive in marriage relationships.27

Race

Mildred Jeter and Richard Loving could have never known when they started their teen romance in 1951 that they would eventually change U.S. marriage law. The young couple grew up near each other in Virginia where, despite a state law barring interracial marriage,28 their rural community displayed little tension and segregation between the White and Black communities.29 Although unique to U.S. law,30 the state of Virginia was not alone in its anti-miscegenation law—15 other states had similar prohibitions.31 At the same time, many cities were becoming less segregated,32 the public was increasingly more supportive of desegregation,33 and research suggested that intermarriage was on the rise.34 Scholars noted that allowing interracial marriages could potentially reduce the “status gap” between Black and White Americans through such vehicles as familial wealth inheritance, job connections, and social networks.35 As such, individual decisions about who to marry could have ripple effects for bringing greater equality within society beyond what legal desegregation could do alone. In other words, the will of the people and the changes in public attitudes laid the foundation for changes in the law.

Indeed, the individual decisions of Richard and Mildred Loving started a chain of events that eventually broke down interracial marriage barriers. Five weeks after they were married, the local sheriff stormed their bedroom, telling them that their marriage certificate hanging on their bedroom wall was “no good.”36 The couple pled guilty to the charge of violating the Racial Integrity Act and received suspended sentences conditioned on their leaving Virginia and not returning together for 25 years.37 On appeal, the U.S. Supreme Court held that the law had “no legitimate overriding purpose independent of invidious racial discrimination”38 and as such violated the Equal Protection Clause. The Supreme Court went on to say that the “freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”39 This was the first time the U.S. Supreme Court had invalidated a state marriage regulation based on the U.S. Constitution.

Shortly after the Supreme Court decision in Loving, 182 White and Black Michigan high school students answered a survey about their opinions of interracial marriages.40 Overall, 33% of the students were favorable toward interracial marriage, with proportionally more Black students (64.7%) than White students (28.7%) voicing support. These high school students’ responses represented what seemed like a general trend toward more acceptance of interracial marriages. Indeed, Gallup has been asking about these attitudes since 1958, and responses have consistently shown more support for marriages between Whites and Blacks over time.41 In 1958, the approval rate was 4%, compared to 87% in 2013 (Blacks’ approval at 96% and Whites’ approval at 84%).

Despite the Supreme Court acceptance and apparent public endorsement of interracial marriages, such unions represent less than 10% of all U.S. marriages.42 Some clever empirical research may help to explain this apparent disconnect. Rather than ask respondents whether they supported interracial marriages in the abstract, more general sense, the General Social Survey added questions that ask respondents whether they supported their close relatives marrying outside their race.43 Across a 12-year period, from 2000 to 2012, attitudes did not significantly change; however, there were noticeable racial differences. Approximately half of the Black respondents approved of a close relative marrying a White person, while only about 25% of Whites similarly approved. As compared to general approval of interracial marriage, these lower approval ratings provide a potential explanation for the lower rates of interracial marriage.

Same Sex

The fundamental right to marry from Loving44 rested on the Equal Protection Clause of the Fourteenth Amendment because the Virginia statute arbitrarily forbade the couple from exercising their fundamental liberty to marry. The Court went on to say that marriage is a “basic civil right.”45 Later cases concerning marriage like that of Griswold v. Connecticut in 1965 relied on a right to privacy, under the Due Process Clause of the Fourteenth Amendment.46 Although the Court has noted that not every state restriction on marriage must be subjected to the strict scrutiny test, those restrictions that interfere directly and substantially with the right to marry should be.47 Restrictions that merely deter or burden will be evaluated with the rational basis test,48 which means that the restrictions must only be rationally related to a legitimate government interest. This legal distinction in scrutiny applied raises the question of whether restrictions more directly and substantially interfere with one subset of the population than another.

The U.S. Supreme Court answered those questions as they relate to same-sex couples in the 2015 case of Obergefell v. Hodges.49 The five-justice majority held that the right to marry is a fundamental right guaranteed by both the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Their landmark decision overturned Baker v. Nelson (1972) from more than 40 years prior.

In the spring of 1970, two male University of Minnesota students had applied for and were denied a marriage license by a county clerk located in Minneapolis. The only basis for denying Richard Baker and James McConnell their marriage license was the fact that both were the same sex.50 They filed suit on the grounds that Minnesota law had no explicit requirement that couples be of opposite sexes. They also contended that if the Minnesota court construed the law as requiring such, then the law violated the U.S. Constitution because it imposed on First, Eighth, Ninth, and Fourteenth Amendment rights. After the trial court dismissed the case, Baker and McConnell appealed to the Minnesota Supreme Court, which affirmed the lower court, noting that marriage was intended to be between a man and a woman. Baker and McConnell took their case to the U.S. Supreme Court claiming Ninth and Fourteenth Amendment violations.51 The U.S. Supreme Court provided a one-sentence dismissal that indicated that there was no substantial federal question.52

For the next four decade...

Table of contents

• Cover
• Title Page
• Copyright Page
• Contents
• Preface
• Introduction: The Door to the Family Home
• 1. Barriers to Marriage
• 2. Leading Up to Marriage and Family
• 3. Getting, Being, and Staying Married
• 4. Becoming a Parent and “Making” a Family
• 5. Parenthood and Other Caregiving
• 6. Dissolution of Marriage
• 7. Child Custody, Visitation, and Support
• 8. Intimate Partner Violence, Child Maltreatment, and Elder Maltreatment
• Conclusion: Closing the Door to the Family Home
• Acknowledgments
• Notes
• Index
• About the Author