Introduction

This introductory chapter traces the history of family law in America, which came of age during the last half of the twentieth century. Earlier, in practice, scholarship, and legal education, it was given little attention or respect. Perhaps the reason for the low status of family law practice, defined narrowly as domestic relations and almost exclusively concerned with divorce, was that it dealt with human conflicts and real people in distress, not legal abstractions. The legislative movement to recodify state family law, particularly divorce law, began mid-century. An important influence on divorce reform was the efforts of the Commissioners on Uniform State Laws. The Commissioners had been working on divorce law for seventy-five years before the Uniform Marriage and Divorce Act was promulgated in 1970. The Act brought clarity in laws on marriage, divorce, and child custody. The chapter then looks at the development of child protection practice and law. Ultimately, the legal landscape of today has been shaped by many factors: the movement for racial equality, children’s rights, women’s rights, gay and lesbian rights, and the social and legal agenda of certain religious groups.

Adoption

This chapter addresses the establishment of a new parent–child relationship through adoption. It explores the recurring tension between individual autonomy and state regulation in the placement of children for adoption, and how it is reflected in the major developments in adoption in the past half-century. During the twentieth century, adoption was a specialized child welfare service performed by social workers in private and public child welfare agencies. Whether a birth mother relinquished her infant for adoption voluntarily or whether adoption was the final outcome of a child dependency proceeding, the articulated goal, sometimes achieved and sometimes mere rhetoric, was to advance the best interests of the child. These two tracks—voluntary relinquishment and involuntary termination of parental rights—resulting in adoption have given rise to dual systems in the past forty years. Even though the ultimate outcome of adoption for children from either system may be the same in terms of a court establishing the adoptive status, there is a major difference in goals. The goal of the voluntary system may well be to provide a childless couple with an infant so as to continue the adoptive family name. The aim of dependency proceedings resulting in the termination of parental rights is to protect children, and the disposition of adoption is a vehicle for providing a child with a permanent attachment to a family.

Marriage

This chapter examines the establishment of formal marriage, including same-sex marriage, and the legal issues involved in maintaining that relationship. While in the past the marital relationship was wholly defined by the state, now certain aspects of the relationship can be negotiated by the parties, which may result in a more egalitarian relationship. Also, by including the marriage within the world of contract, one effect is to move the status away from its religious roots and aspects and toward its being a secular relationship. The benefit of treating marriage as a special kind of partnership contract is that it emphasizes the individual nature of the relationship and downplays its community aspects. Indeed, the modern marriage is more like an association, in some situations a business association, of two adults who have preserved their individual rights. The chapter then considers freedom to marry as a fundamental right and looks at how states have limited marriage formation throughout history.

Friendship, Marriage-Like Relationships, and Informal Marriage

This chapter discusses issues of establishing adult relationships, including friendship and informal marriage, and how individuals have attempted to regulate their upcoming marriage by entering into prenuptial agreements. The road to marriage has traditionally consisted of romantic friendship, courtship, engagement, and then formal marriage. It is during the formal or informal engagement period that a couple may think of entering into a prenuptial agreement. However, this behavior pattern has changed dramatically in the past fifty years. There may no longer be defined periods on the road to marriage, and marriage itself may no longer be the final relationship between two people. Whatever the arrangement, the relevant legal questions are the following: What relationships should be labeled “family”; who should be authorized to make such a designation, the state or the parties themselves; and should the state regulate them? At the present time, two kinds of adult relationships that are not formally recognized by the state as marriage are contract cohabitation and domestic partnership or civil union.

Divorce

This chapter assesses divorce, both as a termination of a marriage and as the legal, social, and psychological reorganization of that relationship and the parent–child relationship established through the marriage. “Reorganization” is an appropriate descriptor because the divorced couple may have a continuing relationship, albeit altered by post-divorce property and child custody arrangements. Alimony and the assignment of property may continue the adult relationships, but on a level different from marriage. Likewise, the judicial award of a child's custody to one parent or another changes the relationship from what it was during marriage. Ultimately, the petition for divorce not only restricts the personal autonomy of the couple but also limits their relationship with their children at least until they reach majority. The chapter then details the American divorce laws and procedure.

Child Protection

This chapter studies the parent–child relationship through the lens of child protection laws, with emphasis on the issues of state intervention into that relationship. Throughout the history of the laws governing the complex relationship of parent, child, and state, there has been a struggle between parental authority and family privacy, on the one hand, and the state's responsibility of guarding the best interests of the child, on the other. The rhetoric has been that parents have the basic right to raise their children as they see fit, subject to their not overstepping the bounds of reasonableness in all aspects of childrearing. However, parental rights are not unlimited. Historically, the state, the ultimate parent who looks after all the children in society under the parens patriae concept, has a right to subject parents to public scrutiny and legal examination. In the United States, in the main, child protection in the form of child welfare services in the latter part of the twentieth century and the beginning of the twenty-first is basically the responsibility of the states. State social service agencies under the executive branch deliver certain social services themselves but more commonly for reasons of economy contract for foster care and adoption services with private social service agencies, which they monitor. The chapter then looks at the federal government's impact on the child protection systems in the states.