Family Law

9 Key excerpts on "Family Law"

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  The Family in Law

  • Archana Parashar, Francesca Dominello(Authors)
  • 2017(Publication Date)
  • Cambridge University Press

    (Publisher)

  Even with respect to the nuclear family, how we theorise the family (in law) has repercussions for real people; for example, if the law assumes that the nuclear family has been replaced by an egalitarian partnership, it will take a certain shape – validate the reflexive choices view of family that could make the reality of the dependency that exists in families invisible in law. But if the law upholds the dependency model of family too much, this could be at the expense of facilitating choice in forming and ending our intimate relationships. We will examine this point further by examining the broad contours of Family Law. 1.4.2.1 The broad contours of Family Law Family Law is most commonly understood as the law that determines the creation and dis- solution of marriages or marriage-like relationships. This area also governs the resolution of disputes about maintenance and property, as well as parenting and child-support disputes that can arise at the end of a relationship. However, it is less clear whether Family Law extends to the regulation of domestic violence, provision of childcare facilities or social-wel- fare benefits. Similarly, it is more difficult to answer whether the area extends to the right to abortion or the availability of latest assisted reproductive technologies, for example. In most of the mainstream legal discourse, Family Law is viewed as boundary marking. It is treated as a specific area of law concerned with the formation of marriage (or similar intimate relation- ship) and divorce and certain ancillary matters. The laws and policies that may have an impact on intimate relationships while they remain intact are not usually included in the subject of Family Law. Indeed the law seems to operate on the assumption that while these relationships remain intact Family Law does not regulate them, and the parties (usually the adults involved) decide on their mutual roles and obligations free of any state interference.

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  American Law and Legal Systems

  • James V. Calvi, Susan Coleman(Authors)
  • 2016(Publication Date)
  • Routledge

    (Publisher)

  CHAPTER 13 Family Law

  Families in this country generate a great deal of litigation. Few lawsuits match the magnitude of the impact on the individuals involved, with the exception of the most serious felony cases. These suits impinge upon the most sensitive and personal of relationships; these are the cases that dissolve marriages and determine the custody of children. Many are decided without blazing courtroom battles (the arguments have usually occurred earlier, behind closed doors). Many Family Law cases are settled by agreement between the parties, and the courtroom proceedings may seem routine and bland to the detached observer, but the emotional impact on the parties is immeasurable.

  Laws that affect familial relationships span many fields, including property law, wills and estates, contracts, torts, and criminal law. This chapter focuses on the creation of the family relationship by marriage or other types of domestic commitments, by paternity suits, and by adoption; on the legal principles governing such relations; and on the dissolution of the spousal and parent–child relationship through various types of court action. State legislatures and courts bear the primary onus of dealing with the sometimes complex, often time-consuming issues of Family Law. It is rare for the U.S. Supreme Court to consider a case involving these matters, although a few involving constitutional questions, such as equal protection, have reached the Court. It is state courts––often specially created domestic-relation courts––that try and then decide the overwhelming majority of such cases.

  ROLE OF THE STATE IN FAMILY RELATIONSHIPS

  The role of the state in regulating family relationships is so firmly entrenched in jurisprudence that it is virtually unchallenged by today’s litigants. In Rome by the time of Christianity, marriage required only the reciprocal consent of the couple, a precursor of today’s informal marriages. During this time, the parties were essentially equal; the husband controlled neither the wife nor her property, although he was obligated to maintain her financially, and either party could end the marriage.1

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  The Handy Law Answer Book

  • David L Hudson(Author)
  • 2010(Publication Date)
  • Visible Ink Press

    (Publisher)

  What types of issues are covered by Family Law, or the law of domestic relations?

  This area encompasses all aspects of intra-familial life, including but not limited to marriage, divorce, child custody, child support, child visitation, adoption, paternity, and surrogacy. Most state law codes contain a separate section or sections—called a title or titles—that deal exclusively with Family Law. For example, there is a separate title (Title 25) in Arizona called “Marital and Domestic Relations.” Tennessee has a separate title (Title 36) called “Domestic Relations.” Often attorneys will specialize in particular aspects of Family Law given the complexity and depth of the subject.

  Family Law interacts with many other areas of law, including contracts, torts, crimes, and other areas. Marriage itself is a civil contract between two parties (in nearly every state between one man and one woman). Both parties must consent to the marriage just as with any other type of contract. Sometimes parties will enter into contractual arrangements before marriage referred to as prenuptial agreements. Sometimes parties to a marriage will allege criminal and/or tortious (wrongful) conduct committed by their partner.

  MARRIAGE

  How is marriage defined by the law?

  Marriage is a civil contract or union between two persons (in nearly all U.S. jurisdictions between one man and one woman) who live together and share their lives together (at least until a dissolution). Ideally, the two people share deep emotional and physical bonds that allow them to survive and even thrive during the hardships of life. Unfortunately, we know that a large number of marriages dissolve and end up in divorce.

  How can people be married?

  Most people are married through a ceremony performed by a religious figure or a secular figure authorized by the state to perform marriages. Many people are married in churches or chapels by a minister of one of the person’s church. Others are married at the local courthouse by a judge or justice of the peace. Still others are married by a family friend who has the authority as a lay person to perform marriages. These unions are referred to as ceremonial marriages, because the institution or process of marriage is performed through a ceremony.

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  Law and the Relational Self

  • Jonathan Herring(Author)
  • 2019(Publication Date)
  • Cambridge University Press

    (Publisher)

  6 Family Law and the Relational Self 6.1 Introduction Family Law seems the ideal place to find a law emphasising the importance of relationships. However, as we will see, in fact, Family Law reveals the complex- ities of regulating relationships and the debates over the nature of the self at the heart of this book. Although Family Law does focus on relationships, there is a lack of clarity about which relationships it seeks to regulate; how individ- uals interests are balanced and understood in terms of the responsibilities of the relationships; and the role of the law in response to a relationship. As with the other chapters in this book, I cannot attempt to set out every consequence for adopting a more relational approach to Family Law and I will select some key themes: the concept of the family in Family Law; financial orders on relationship breakdown; the concept of parenthood; the nature of parental responsibility; and the resolution of disputes over children. I will not attempt to set out the law in detail in these areas, 1 rather my primary focus will be on setting out what a relational approach might bring to them. 6.2 The Family of Family Law Family Lawyers and family studies theorists have long debated the nature of the family. 2 There is no correct answer to that question because so much depends on what the category is being used for. For Family Lawyers, much depends on what the role for Family Law is. For example, if you understand Family Law as being about facilitating and supporting certain approved forms of intimate life then this will clearly impact on your understanding of what a family is. Martha Minow and Mary Lyndon Shanley have helpfully set out three primary models that could be used as the foundational values for Family Law. 3 1 For that, see, J. Herring, Family Law (Pearson, 2019). 2 For an excellent recent contribution see A. Brown, What Is the Family of Law? (Hart, 2019).

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  Understanding Law in a Changing Society

  • Bruce E. Altschuler, Celia A. Sgroi, Margaret R. Ryniker(Authors)
  • 2016(Publication Date)
  • Routledge

    (Publisher)

  HAPTER 9

  Family Law CHAPTER OBJECTIVES After reading this chapter you should: •  comprehend the nature of the family and the changing role of women in the family; •  understand the legal definition of marriage and how it has changed; •  grasp the Best Interests of the Child Standard used in child custody cases; •  comprehend the limited legal standing of unwed fathers; •  know the definition of surrogacy and the pitfalls of surrogacy arrangements; and •  understand the problems that arise in parental termination cases. INTRODUCTION Family Law includes laws governing marriage, divorce, child custody, child support, adoption, surrogacy, and termination of parental rights. These laws have evolved piecemeal in every state.

  Historically, the federal government has sought to avoid family matters, in the belief that such issues should be handled locally by the states. Questions of Family Law were deemed to be of such a personal nature that each jurisdiction needed to determine its own laws guided by its own state’s moral compass. Over the last forty years, however, the federal government has addressed a number of Family Law issues, from unwed fathers’ rights to welfare reform.

  At the outset, we must consider the definition of the term family. When we think of a family, we may imagine the married, heterosexual couple with two children. Such families do exist, but they are the minority. In reality, we have all kinds of families, including single-parent families, blended families (second marriages with children from previous unions), families with grandparents raising grandchildren, and gay and heterosexual couples with and without children. In 1989 the New York Court of Appeals recognized a gay partnership as a family so as to allow the surviving partner to maintain possession of a rent-controlled apartment in New York City. See Braschi v. Stahl Associates Co., 74 N.Y.2d 201, 543 N.E.2d 49, 544 N.Y.S. 2d 784, 58 USLW 2049 (1989.) Family

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  Families and Law

  • Marvin B Sussman, Lisa J Mcintyre(Authors)
  • 2012(Publication Date)
  • Routledge

    (Publisher)

  Law and the Family in Historical Perspective: Issues and Antecedents Lisa J. McIntyre Introduction

  Law, family. The words evoke very different images: law is formal, cold and impersonal; families are informal, warm and affectionate. Ideally, legal relationships are detached, restrained and sober; familial relationships, demonstrative, effusive and exuberant. On the surface, at least, the law and the family are antagonistic and belong to separate domains within society-the law to the public and the family to the private. Yet, as the essays in this volume illustrate vividly, law and family have a great deal to do with one another these days. It almost seems as if at every turn the family unit encounters the law.

  What is easy to overlook is that the ties that exist between the family and legal order are not uniquely modern. Looking back, one finds that the law has long been twined to family concerns. However, as I will show in this essay, the nature of law’s impact on the family has changed a great deal in the recent past. Moreover, it is surprising to learn that, notwithstanding the apparent conflict between law and family, to the degree that in modern society the family remains a private institution, a sanctuary from the world of the market and the political arena, a great deal of this state of affairs is owed to the law.

  The nature of law’s relationship with the modern American family is best understood by looking back to the beginnings of this relationship, where it took root first in England. English Roots

  In England, from the twelfth until the mid-nineteenth century, the laws respecting marriage and family life were of two principal sorts: secular or common law and church or ecclesiastical law. In the main, the regulation of marriage per se was left to ecclesiastical courts which had jurisdiction over such matters as who could marry whom and under what circumstances husbands and wives could separate. Similarly, adultery, fornication and incest, as well as “any uncleanness and wickedness of life” (Ingram 1987, 239) were not crimes but spiritual offenses to be dealt with as church, not temporal courts, dictated (Blackstone IV

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  Family Law and the Indissolubility of Parenthood

  • Patrick Parkinson(Author)
  • 2011(Publication Date)
  • Cambridge University Press

    (Publisher)

  Part One Family Law and the Meaning of Divorce 3 1 Family Law and the Issue of Gender Conflict fathers, mothers, and the gender war Family Law is largely about distributing loss. Of course, it is rarely described as such. When judges make decisions about where children will live and how much contact the other parent will have, their decisions are cloaked in the optimistic language of the “best interests” of children. Similarly, when making decisions about property, courts may use the language of equi- table distribution of assets, as if what is being divided are the gains of the marriage. In one sense it may be so. Yet in divorce, as is often said, there are no winners. When it is not possible for the children to live in the same household with both parents, neither parent will usually have as much time with the children as he or she had during the intact marriage. When one household is divided into two, neither party to the marriage can keep as much of the property as they enjoyed during the marriage. The courts must endeavor to split the loss equitably between them. Because marriage breakdown involves so much loss, it is also a period of grieving. Anger is a natural stage in grieving, and whereas in the death of a loved one, the grieving person may be able to rail only against the heavens, in the death of a marriage, there are far more tangible targets. There is the ex-spouse, his or her solicitor, men’s groups, the feminist movement, the courts, or perhaps the Family Law legislation itself. It is not surprising, then, that Family Law is continually being “reformed.” Family Law is in a state of flux in many countries. Pressure builds up in the system as one group feels more keenly a sense of grievance than another; dissatisfaction finds its expression in the political sphere, and a Committee is established or another report is commissioned. Family Law is thereby politicized in a way that is not true of most other areas of private law.

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  Caring and the Law

  • Jonathan Herring(Author)
  • 2013(Publication Date)
  • Hart Publishing

    (Publisher)

  6 Family Law and Caring I. Introduction Care is at the centre of family life. Yet it is sexual relationships which have, for a long time, dominated Family Law and been regarded as the focus of the definition of a family and the marker for legal intervention. This chapter will argue in favour of a major refocusing in the area of Family Law around the notion of care. It will make four radical claims: That caring relationships rather than sexual relationships should be at — the heart of Family Law. That parenthood is created by day-to-day care, rather than blood ties. — That orders in relation to children must be made based on their relation-— ships with others. That financial orders on separation are best justified as a way of ensur-— ing that care work is undertaken and valued. We have, I suggest, begun to see a shift in these directions over the past decade or two. This is to be welcomed and encouraged. It is to be hoped, that in future years we will see a more decisive move in the direction of these claims. II. Care at the Heart of Family Law Traditionally, Family Law has focused on sexual relationships. Marriage and cohabitation are still major themes in Family Law. Typically, textbooks on Family Law open with an explanation of the law of marriage, with an overly detailed analysis of the law on consummation. The authors explain that other relationships which are marriage-like (by which is meant sexual relationships) 188 Family Law AND CARING are protected in varying degrees. Moving on to parenthood, students are taught that parenthood is paradigmatically established by the biological link or through marriage. While textbooks on Family Law have extensive chapters on marriage; cohabitation and parenthood; little is written on, for example, the relationships between an adult child and her parent; a parent and an adult disabled child; a friend and someone with a disability; or the position of older people in families.

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  Law Reform 2015

  • Stephen Hockman(Author)
  • 2014(Publication Date)
  • Profile Books

    (Publisher)

  7 Family Law

  Naomi Angell, Barbara Connolly QC, Michael Horton, Andrew Powell and David Williams QC

  W ith Family Law having developed piecemeal over the past 150 years, there is a case for codifying all aspects of it into a single statute – a ‘Family Code’. This would make the law far more accessible to all those who need to have reference to it. We recognise that the considerable body of Family Law and the crossovers into other areas – such as the provisions on parentage and licensing in the Human Fertilisation and Embryology Authority – pose some practical difficulties and that complete codification might not be achievable. Nonetheless, significant areas could still be drawn together while leaving others outside the Family Code.

  Children: Private and public law matters

  There has been considerable focus on the framework provided by statute and the approach of family courts to children whose parents have separated or who are at risk of harm from their parents.

  Very significant changes have been introduced in the way in which care proceedings are dealt with in the family courts, and further changes have been introduced in the Children and Families Act 2014, which passed into law on 13 March 2014. Until these bed in, it would be premature in our view to consider further changes.

  The Children and Families Act also contains arrangements for children after their parents have separated. However, these are limited in their ambit and we believe that there are other matters that would benefit children and parents more and which can and should be considered.

  Private law: Parental responsibility

  It remains an unusual anomaly that the Children Act 1989 distinguishes between the position of the child of an unmarried father as compared with the child of a married father. All children’s mothers (using the phrase in the sense of biological mother) acquire legal parental responsibility for them, which cannot be removed by a court except in the case of adoption. Children’s fathers acquire legal parental responsibility automatically if they are married to the mother, and only lose it in the event of adoption. In contrast, the child of an unmarried father only acquires parental responsibility if with the mother’s consent he is registered on the birth certificate or a parental responsibility agreement is made, or if a court application is made and the court orders that he should have parental responsibility. In addition, the unmarried father’s parental responsibility can be removed by court order.1

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