Mary Mason, Mark A Fine, Sarah Carnochan. Handbook of Contemporary Families. Editor: Marilyn Coleman & Lawrence H Ganong. Sage Publication. 2004.
Marriage and family have historically played an important role in U.S. society. According to one judge in a 1939 divorce case, “[O]ne of the foundation pillars of our government is the sanctity of the marriage relation and the influences of the home life, where the holy bond of wedlock is looked upon with profound reverence and respect, and where the marriage vows are sedulously observed” (Fania v. Fania, 1939, p. 373). Marriage remains a cherished institution; 93% of Americans rate a happy marriage as one of their most important life goals (Gallagher & Waite, 2000). However, Americans are marrying less often and for shorter periods (Nagourney, 2000). In the last part of the 20th century, family law has focused on redefining the legal institution of marriage and, at the same time, recognizing other family and child-rearing forms.
Although there is not a consensual definition, for the purposes of this chapter, family law is defined as the branch of law that addresses issues pertaining to romantically involved partners (e.g., marriage, divorce, domestic partnerships) and children (e.g., child custody following divorce, assisted reproduction, adoption). Changes in family law have typically lagged behind societal changes; the law struggles to come to terms with new social realities (e.g., domestic partnerships, unwed fathers, and alternative reproduction) by either incorporating or reacting against those changes. However, in some instances, such as no-fault divorce statutes, changes in the law have served to facilitate social change. Finally, some family issues of great social importance are virtually neglected in family lawmost strikingly, the role of stepparents.
Most issues in family law are decided state by state. Therefore, wide variations exist among states in fundamental issues, such as the division of property following divorce.
Nonetheless, it is possible to recognize trends that cross all, or most, state lines. Although several federal laws have had substantial impacts, family law remains solidly within states’ jurisdiction.
Another part of the revolution in family law is the role played by the social sciences. Both legal rhetoric and judicial reasoning have been greatly influenced in some parts of family law by professionals in mental health and related social science disciplines. Judges often refer to research in their opinions regarding the best interests of the child, and mental health experts are routinely called upon in familial disputes. Still, the application of the social sciences is uneven and uncertain, and there are many areas in which research is routinely ignored or manipulated.
Trends in Family Law
Though marriage remains a central cultural paradigm, substantial changes have occurred in marriage as a legal institution over the past 30 years. During most of U.S. history, a married couple was regarded as having a single legal identity. Although married women made significant progress in the 19th century in obtaining the right to own and manage their own property through the passage of property legislation, women were still largely considered dependents of their husbands. Husbands were responsible for their families’ financial well-being, and women who worked were eligible for lesser benefits than their male counterparts on the basis of the assumption that they were not the household’s primary wage earner. Prenuptial agreements were not honored by the courts, and the obligations at divorce differed for men and women only women could receive alimony. Debts incurred by women were their husbands’ responsibility, but women had no corresponding responsibility for their husbands’ debts (Regan, 1999). Moreover, there was no tort liability between spouses, spouses could not testify against one another in court, and police were hesitant to intervene in cases of domestic violence. For example, in Ennis v. Donovan (1960), a Maryland court held that “a married woman had no common-law right to sue her husband for injuries suffered by her as the result of his negligence, and, the Legislature has not yet seen fit to grant her such a right” (p. 543). Despite changes in women’s position throughout the last century, the rhetoric of a unitary spousal identity “husband and wife as ‘a single person, represented by the husband.’” remained in judicial discourse into the 1970s (Lewis v. Lewis, 1976).
In the last three decades of the 20th century, this paradigm of dependence shifted toward a partnership model in which marriage is more like a contractual relationship between two individuals. Under the new model, a husband and wife are considered equal partners contracting in a marriage, and both retain an independent legal existence. The current law relating to marriage views “the marital relationship as one constituted by personal choice, the natural character of which is rooted in the desire of individuals to seek happiness through intimate association with another” (Regan, 1999, p. 652). With this shift, the nature of marriage has undergone a fundamental alteration. Spouses now hold mutual rights and responsibilities with respect to one another (Queen’s Medical Center v. Kagawa, 1998). The presumption that the husband is the breadwinner and the wife the homemaker has been replaced with the partnership concept. Spouses are now perceived as creating their own marital roles. This perception led courts to uphold and enforce the validity of prenuptial agreements upon divorce (McHugh v. McHugh, 1980). Under the partnership model, these agreements presumably do not weaken marriage by making divorce more desirable; they secure the rights of the individuals entering marriage against future disputes. Support obligations and responsibility for a spouse’s debts are now placed equally on men and women, and contributions that women outside the workforce make to the family are gaining recognition.
The push for equal treatment between men and women in marriage, and ultimately in divorce and child custody, was driven primarily by the movement to obtain equal rights for women (Mason, 1988). In addition to the recognition of the contributions that women make to a marriage, this feminist attentiveness has resulted in an increasing awareness that women often suffer when there are marital problems. As a result, law enforcement and the courts are now more likely to intervene when there are problems within a marriage. Domestic violence and marital rape are given more attention, and men and women now have the right to decide whether they will testify against their spouses in federal court (Trammel v. United States, 1980). Moreover, tort liability between spouses now exists in most states, albeit at a higher standard than between legal strangers (Lewis v. Lewis, 1976). These changes reflect recognition that legal institutions have a role to play in enforcing the rights and responsibilities created by marriage, while also respecting the independent identity of each spouse.
Changes in reproductive laws also have affected the spousal relationship. U.S. Supreme Court decisions such as – Roe v. Wade (1973) have given women more reproductive choices and have empowered them to make those choices independent of their husbands. Though married women could take few actions fully independent of their husbands under the dependent marriage model, under the partnership model women can make important reproductive decisions (e.g., to have an abortion) independently, even against their husbands’ objections. This change reflects the increasing recognition of each spouse’s independent identity and rights within marriage.
The shift to a partnership model of marriage was accompanied by a change in how the partnership could be dissolved. The last 30 years ushered in what has been termed a divorce revolution. Drastic changes in divorce law rendered divorce a unilateral decision not based on fault. This made divorce far easier to obtain and in most states created a fundamentally different framework for the distribution of property and the allocation of support following divorce. Following the lead of California’s revolutionary Family Law Act of 1969, all states by 1985 offered some form of no-fault divorce (Krause, 1986). In some states, one party had only to complain that the marriage had reached a point of “irretrievable breakdown” with no requirement of proof; in other states, “incompatibility” or “irreconcilable differences” had to be demonstrated if one party objected, but if one partner chose to live separately for a period of time, that was also seen as proof of marital breakdown. There are debates about how much changes in divorce law contributed to rising divorce rates; some claim the rise was an extension of earlier increases that were temporarily reversed in the 1950s. Regardless of the reasons for the increase, demographic trends clearly reveal that the divorce rate doubled between 1966 and 1976. By the 1980s, it was predicted that half of all marriages would end in divorce (Cherlin, 1992).
The basic assumption underlying the changes in divorce and custody law was that men and women should be treated equally before the law. This was a sharp departure from the beliefs in the era of dependent marriage and fault-based divorce. Family law had then perhaps favored women (and children) by making divorce hard to obtain and by allowing extended support for wives and children after divorce, in the belief that wives were less able to take care of themselves economically than were husbands. A maternal presumption in custody, established by the early 20th century, also favored mothers, reflecting beliefs that they were more nurturing than fathers.
The assumption that men and women should be treated equally had serious consequences for the distribution of property and for alimony. Traditionally, unless the woman was at fault, alimony, or spousal support, was routinely granted for life in most states, but collection and enforcement rates were low. As divorce law changed to reflect the equality of partners, the concept of alimony came under negative scrutiny. The Uniform Marriage and Divorce Act of 2002 (UMDA) moved that alimony only be used when the spouse could not take care of herself and that fault in the divorce should not be a consideration. Fault also was deemed an inappropriate consideration in determining property division. UMDA did, however, pursue a substantial change, allowing women to have a claim to the equitable distribution of property in common-law states where the person who held title, typically the husband, was usually granted the property.
Only women with children still had the expectation of support, through child support, and even here the amounts were generally low and the majority not collected. In 1975, the Federal Office of Child Support Enforcement was created, with state agency counterparts, to increase child support collection. Subsequently, the Family Support Act of 1988 set stricter standards for state child support enforcement, resulting in increased enforcement among the Aid to Families with Dependent Children (AFDC) population. States are also now required to maintain federal locator services and to enforce sister states’ judgments. The Child Support Recovery Act of 1992 criminalized a parent’s failure to pay court-ordered child support when the parent and child live in different states. Despite these and other federal efforts to improve compliance with and enforcement of child support orders, the rate of collection remains low in most states (Mason, 2000).
The shift toward easy-to-obtain divorce has not gone unchallenged. One aspect of the backlash against it is the recent passage of “covenant marriage” statutes (Louisiana Act 1380, 1977; Ariz. Rev. Stat. Ann. § 25-901-906 [West, 1998]). These laws allow couples to enter into a marriage that can be ended only on statutorily specified grounds. Proponents argue that covenant marriage increases respect for marriage as an institution and will reduce the divorce rate. Supporters of covenant marriage also believe “that no-fault divorce is responsible for the high divorce rate and for other societal problems that are correlated with divorce and single-parent homes” (Pearson, 1999, p. 633). Opponents claim that these statutes are both too restrictive (they may trap an individual in a bad marriage) and not restrictive enough (they are voluntarily entered and may be invalidated with the consent of both spouses). At their strongest, statutory covenant marriages eliminate only one aspect of the no-fault divorce statutes: In the absence of wrongdoing, one spouse in a covenant marriage cannot unilaterally demand and be granted a divorce (Wardle, 1999).
Whereas in previous eras child custody issues ordinarily involved orphans or children of parents who could not care for them, in the modern era the majority of child custody matters are the product of divorce. Although under the jurisdiction of courts, most child custody determinations are made by the parties rather than by a judge at trial (Mason, 1994). In the wake of radical divorce reforms, the number of child custody cases has greatly increased, and the substantive rules that the courts use to determine custody have shifted drastically. This shift has followed and reflected the new emphasis on egalitarian marriage.
“The simple fact of being a mother does not, by itself, indicate a capacity or willingness to render a quality of care different from that which the father can provide” (State ex rel. Watts v. Watts, 1973). With this statement, a New York court challenged nearly a century of a judicial presumption in favor of mothers. Not all courts were as outspoken in reducing the importance of mothers; nevertheless, the presumption that the interest of a child of tender years is best served in the custody of the mother was legally abolished or demoted to a “factor to be considered” in nearly all states between 1960 and 1990. By 1982, only seven states gave mothers a custody preference over fathers for children of tender years (Atkinson, 1984). Rather, most states mandate that custody decisions be based on a consideration of the “best interests of the child,” a standard that is far less clear and specific than the maternal preference standard. In an attempt to address this ambiguity, state legislatures drafted statutes to direct judges left with the task of applying the elusive “best interests” standard. Most legislatures also suggested joint custody as an alternative to awarding custody to one parent, giving fathers as much time with children as mothers, and thereby avoiding the problem of having to choose between legally equal parents. Some states adopted a primary caretaker preference, providing custody to the parent who spent the most time with the child (Mason, 1994).
California led the way in custody initiatives, as it had in no-fault divorce, by introducing a preference for joint legal custody in 1980. By 1988, 36 states had followed California’s lead. Legislatures, and sometimes courts, produced several variations on the joint custody theme. Joint physical custody dictated that parents should share their time with the child as equally as possible. Joint legal custody, on the other hand, allowed a more traditional sole custody arrangement with visitation for the noncustodial parent. Both parents retained equal input into decisions affecting the child, such as choosing medical treatment and schools. By the end of the century, joint legal and physical custody was the preference in most states (Mason, 2000).
Remarriage and Stepfamilies
Because most partners who divorce eventually remarry, the dramatic increase in divorce resulted in a steep rise in the number of stepfamilies (Seltzer, 1994). Although changes in law and practice relating to marriage and divorce have led to more stepfamilies, little has changed with respect to the legal status of stepparents. Stepparents who do not adopt their stepchildren remain in an ambiguous role with no legal identity (Mahoney, 1994). Their rights and duties toward their stepchildren are largely undefined, and, when they are defined, a consistent understanding of their role in the family is not reflected (Mason, 1998). The American Law Institute (2000) addressed some of the legal issues surrounding stepfamilies by defining de facto parents and parents by estoppel (i.e., individuals who are considered parents because they have presented themselves as parents and because it would be inequitable for them to later deny that role) and allowing them to petition for custody of children at divorce. Many stepparents would meet the requirements of these rules. However, even this measure is limited in its applicability because it only indirectly defines stepparent rights and responsibilities to stepchildren during marriage. For example, stepparents are often unable to consent to medical treatment or sign a school permission slip for their stepchildren (State v. Miranda, 1997). Generally, stepparents do not have a legal obligation to support their stepchildren, and those who take on such an obligation by acting in loco parentis (i.e., “in the place of the parent”) do so voluntarily and may end their obligation unilaterally at any time (Niesen v. Niesen, 1968). Nonetheless, some federal and state welfare programs take a stepparent’s income into account when determining a child’s eligibility, whereas others do not.
Stepchildren face legal obstacles in most states that prevent them from filing wrongful death suits on behalf of their stepparents or inheriting when a stepparent dies intestate (i.e., without a will) (Champagne v. Mcdermott, Inc., 1992). Despite the confusion that this ambiguity may cause for families, courts and legislatures have been hesitant to address the problem and define a legal role for stepparents. Thus, the changes that are occurring in the law relating to stepparent relationships come slowly and indirectly through changes designed to benefit others. For example, some stepparents are having success in obtaining visitation with their stepchildren following divorce. To a large extent, this success results from states’ general third-party visitation statutes, which allow stepparents (and others) to petition for visitation when there is disruption in the family but do not create for stepparents the presumptive right to visitation that exists for biological parents.
Through much of the 20th century, unwed fathers were largely invisible in family law. In the last 25 to 30 years, however, as the number of children born to unmarried parents has risen (McLanahan & Sandefur, 1994), substantial changes have occurred with regard to the legal consequences of “illegitimacy” and the paternity, custody, and child support rights and obligations of unwed fathers. It is difficult to determine the precise number of unwed fathers: They are frequently not listed on birth certificates and, when not involved in the child’s life, do not come into contact with the agencies that maintain data on families (Blank, 1997). However, the increase in unwed mothers over the last 30 years has clearly been accompanied by an increase in the number of unwed fathers. A number of high-profile cases have involved unmarried fathers seeking custody of their children, but these fathers as a group do not play a consistent parenting role for their children. Lerman (1993) estimated the number of unwed fathers who were not supporting their children at 1.6 million. Still, the rights and obligations of unwed fathers are increasingly recognized and enforced.
Beginning in the late 1960s, courts and state legislatures began offering rights and protections to “illegitimate” children comparable to those of “legitimate” children (Sugarman, 1998). As the rights of illegitimate children began to be recognized, so did the rights and obligations of their fathers. Under the Uniform Parentage Act, based upon common-law tradition and adopted in numerous states, the husband of the child’s mother is presumed to be the father. Historically, this presumption has barred an unwed father from claiming paternity in order to preserve intact families, protect the child, and ensure child support. The U.S. Supreme Court affirmed this presumption as recently as 1989, ruling that the biological unwed father’s interest did not outweigh the state’s interest in preserving an intact family (Michael H. v. Gerald D., 1989). However, numerous state courts and legislatures have overridden the presumption, granting unwed fathers the right to claim paternity even when the mother is married to someone else. For example, the California Supreme Court has granted an unwed father the right to establish paternity, arguing that the child was conceived before the mother married (Mason, 2000).
With the increasing recognition of an unwed father’s right to claim paternity, courts and legislatures have begun to recognize rights in custody disputes and cases in which the mother has decided to relinquish the child for adoption. In Stanley v. Illinois (1971), the U.S. Supreme Court first recognized the custodial rights of an unwed father, ruling that an unwed father who had acted as a parent was entitled to a fitness hearing after the mother’s death, before the children were made wards of the court. However, the custody rights of an unwed father are not automatic. In subsequent decisions, the U.S. Supreme Court has ruled that the biological link of an unwed father may be insufficient to confer rights and has required that he act as a father and participate in child rearing (Caban v. Mohammed, 1979; Lehr v. Robertson, 1983). State courts, however, have granted unmarried fathers rights comparable to those of married fathers (Mason, 2000).
Recently, in In re Nicholas H. (2002), the California Supreme Court allowed an unwed, nonbiological father to claim paternity, giving weight to the established paternal relationship between the man and the child. The court held that the statutory presumption that a man who “receives a child into his home and openly holds the child out as his own” has a claim to paternity was not negated by the fact that the presumed father was not the biological father.
Finally, as the number of children living in single-parent households has increased, policy initiatives in the last quarter-century have focused on enforcing child support obligations. In 1985, only about 13% of never-married mothers reported receiving support from the fathers of their children (Lerman, 1993). In 1975, the Federal Office of Child Support Enforcement was created, with state agency counterparts, to increase child support collection. Subsequently, the Family Support Act of 1988 set stricter standards for state child support enforcement, resulting in increased enforcement among the AFDC population. Despite enforcement efforts, the frequency and amount of child support awards and payments remain low (Mason, 2000). However, welfare reform, with time-limited benefits for parents to receive aid, has made the enforcement of child support a critical issue. As pressure grows to collect child support from both unmarried and formerly married fathers, remaining legal distinctions between them are likely to disappear.
Unwed fathers are not the only group that has won increased protection of their interests in maintaining a relationship with a child. As a result of the loosening hold of marriage, any number of adults, related and unrelated, are raising children with little or no legal backing. State legislatures and a number of courts have begun to recognize the roles of these multiple parties by expanding visitation rights to individuals other than parents. Third-party visitation statutes have been enacted in all states, granting a right to petition for visitation to certain categories of petitioners that may include stepparents, grandparents (upon the death or divorce of their child), unmarried parents, or, in the broadest conception, any interested party (Elrod, Spector, & Atkinson, 1999). These statutes usually grant such rights because of family disruption, although some statutes are broadly worded to allow third-party visitation petitions any time.
Third-party visitation statutes have been challenged on constitutional grounds in a number of states with varied results. The state of Washington enacted one of the broadest statutes, allowing any person to petition for visitation at any time and authorizing courts to grant visitation on a showing of best interest. In Troxel v. Granville (2000), one of the few examples of U.S. Supreme Court intervention in a visitation dispute, the mother and unmarried father had two children before the father died. The paternal grandparents sought more extensive visitation than the mother desired and prevailed in the trial court. The state Supreme Court overruled the lower court, holding that the statute unconstitutionally infringed upon parents’ fundamental right to raise their children. The U.S. Supreme Court upheld this decision on the grounds that the statute was too broad and gave no weight to the parents’ judgment regarding the children’s best interest (for a recent case that looked to the Troxel decision, see Wickham v. Burne, 2002). The court refrained from deciding whether all third-party statutes require a showing of harm or potential harm if visitation is not awarded as a condition of granting visitation.
In contrast, a number of state courts have upheld third-party visitation statutes against constitutional challenges. For example, in West v. West (1998), the appellate court ruled that the Illinois statute did not violate the “long-recognized constitutionally protected interest of parents to raise their children without undue State influence” and affirmed the state’s interest in maintaining relationships found to be in the child’s best interest. In Williams v. Williams (1998), the court upheld Virginia’s law, interpreting it to require a finding of harm if visitation is not granted. In a contrary holding, the Georgia Supreme Court found the state’s grandparent visitation statute to be unconstitutional on the grounds that it did not clearly promote the welfare of the child and did not require a showing of harm (Brooks v. Parkerson, 1995). It is likely that the decisions affirming third-party visitation statutes will stand (Troxel v. Granville, 2000).
While the number of single-parent households has increased, in a trend that has been well documented and has received considerable attention from policy makers and researchers, there has been a simultaneous increase in nontraditional or nonmarital partnerships, including cohabitation, same-sex marriage, and domestic partnerships. These nontraditional relationship forms raise legal issues relating to property division and support obligations following termination of the relationship, access to the legal benefits conferred on spouses, and parental rights issues such as custody, visitation, and second-parent adoption (i.e., the partner who is the nonbiological parent adopts the child).
Perhaps the most well-known case dealing with the rights of cohabiting partners is Marvin v. Marvin (1976), in which the California Supreme Court allowed the woman to sue her male partner on contractual grounds for compensation following termination of the relationship. The court held that when there is an explicit or implied contract between mutually assenting individuals in a nonmarital relationship, a court may use principles of equity to divide property at the termination of the relationship. Such a reading of a cohabitation relationship reflects a partnership rather than a dependency model. Subsequent decisions in other states have been more restrictive, however, requiring proof of a contract of cohabitation and refusing to enforce agreements based upon sexual obligations or promises. Recently, a Massachusetts court upheld the validity of a written cohabitation agreement (Wilcox v. Trautz, 1998). But although a contractually based right to compensation may be recognized by the courts, cohabitation does not entitle participants to other benefits of marriage, such as social security benefits (Katz, 1999).
The issue of same-sex marriage has been far more controversial than the rights of cohabiting heterosexual couples. In the early 1970s, several cases challenging state marriage laws were rejected (Chambers & Polikoff, 1999). In the early 1990s, the issue gained national prominence when the Hawaiian Supreme Court set forth a presumption that the legislative ban on same-sex marriage violated the state’s constitutional provision granting equal protection and barring sex-based discrimination (Baehr v. Lewin, 1993). Legislative responses to the decision have been almost uniformly negative. Hawaii passed a constitutional amendment allowing the legislature to limit marriage to heterosexual couples, 29 states had enacted laws barring recognition of same-sex marriage by mid-1999, and the U.S. Congress enacted the Defense of Marriage Act, declaring that states have the right to refuse recognition to same-sex marriages from other states and defining marriage as heterosexual for the purposes of federal law (Chambers & Polikoff, 1999).
Most recently, Vermont passed a civil union statute, taking effect in July 2000, which grants to partners in civil unions, including same-sex partners, the benefits and responsibilities afforded to married couples under state laws (15 Ver. Stat. Ann. § 1201). The legislature acted in response to the Vermont Supreme Court’s decision in Baker v. State of Vermont (1999), holding that the state is constitutionally required to extend to same-sex couples the benefits and protections afforded to married couples, through inclusion either in the marriage laws or in an equivalent statutory alternative. The Vermont Supreme Court dismissed a challenge to the civil union statute in Brady v. Dean (2001); however, it remains to be seen how these unions will be treated by other states or by federal law (Bonauto, 2000). The Vermont civil union statute provides more benefits than the domestic partnership laws, which permit unmarried partners to register their relationships and/or provide benefits to partners of employees of the city, county, or state enacting the law. Numerous cities and counties have enacted such laws, and, by 1999, Hawaii, New York, Oregon, and Vermont provided partner benefits to employees.
In contrast to the flurry of legislative activity relating to same-sex marriage and domestic partnership, states have for the most part declined to enact statutes regulating the rights of gay and lesbian parents in custody and visitation disputes, leaving the courts to develop the law in this area. Since the first cases arose in the 1970s, courts have ruled both for and against gay and lesbian parents in determining the best interests of the child but have more frequently denied gay and lesbian parents custody of their children. As recently as the late 1990s, state supreme court decisions in the South and Midwest have restricted visitation rights or transferred custody away from a gay or lesbian parent (Marlow v. Marlow, 1998; Pulliam v. Smith, 1998). Some state legislatures have chosen to act in the area of adoption or foster parenting by gay men or lesbians. The first example was Florida, where a law prohibiting adoption by lesbians and gay men was enacted in 1977 (Fla. Stat. Ann. § 63.042, West 1985 and Supp. 1995). The Florida statute was upheld by the U.S. District Court (Lofton v. Kearney, 2001). However, in numerous other states, gay men and lesbians have been allowed to adopt, in second-parent adoptions (Chambers & Polikoff, 1999).
The National Center for Health Statistics (NCHS) reported in 1995 that 6.1 million women between the ages of 15 and 44 experienced an impaired ability to have children; the number of infertile married couples was estimated at 2.1 million. NCHS (1995) further estimated that 9 million women had used infertility services by 1995. The development of medical technologies enabling infertile women and couples to bear children has presented legal and ethical challenges. Perhaps because of the rapidity of the developments, or perhaps due to the complexity of the relationships established by these new techniques, adequate legal and ethical structures or systems to guide participants in assisted reproduction have not been developed. As use of these technologies becomes more prevalent, courts and legislatures will be increasingly pressured to respond. This is already beginning; the National Conference of Commissioners on Uniform State Laws’ 1998 Draft Revision of the Uniform Parentage Act includes provisions relating to assisted reproduction. These revisions are in discussion, and it may be years before the project is complete and states can consider adopting it.
Infertility treatment may include relatively uncontroversial procedures such as artificial insemination with a husband’s sperm or ovarian stimulation to enhance the chances of conception. Other methods (e.g., in vitro fertilization, ovum donation) raise complex legal issues by introducing additional parties contributing genetic material or biological support to the reproductive process or by creating unprecedented decision-making options at each stage of the process. The involvement of a third party in a couple’s efforts to create a family is not itself a new event. Donor sperm conception has long been available, as it does not require advanced medical intervention. Similarly, traditional surrogacy, in which a woman agrees to conceive and bear a child for a couple, using the man’s sperm, has also been historically available. The increasing range of treatment options, however, creates pressure for the law to respond.
Although the law is underdeveloped in the area of assisted reproduction, we can identify several issues that may require legal resolution. First, the standard in vitro fertilization process using the sperm and eggs of a couple seeking to conceive creates pre-embryos that exist outside of the uterus and can be frozen for an undetermined period. Consequently, disputes over the custody and control of the pre-embryos may arise between the partners, as in Davis v. Davis (1992), where the Tennessee Supreme Court ruled that both spouses had a right regarding procreation but that the father’s desire not to procreate outweighed the mother’s interest in donating the embryos. Second, with ovum donation, the donor may also claim an interest in decisions about the pregnancy, the embryos, or a child born of the process. Finally, with gestational and traditional surrogacy, disputes over decisions regarding pregnancy, embryos, or children may develop among the individuals intending to act as parents, the donors of genetic material, and the surrogate carrying the fetus. In the case of In the Matter of Baby M. (1988), the court held that the surrogacy contract was void because it was contrary to public policy. Treating the case as a custody dispute between the biological surrogate mother and the biological father, the court granted custody to the father, with limited visits for the surrogate mother. Claims by donors and surrogates challenge the law to address the interests of parties outside the marital or partnership relationship.
Legislation governing disputes between participants in assisted reproduction is rare, so the courts are playing the most significant role. Judges are relying on varying legal concepts, including property law, contract law, child custody law, and constitutional law (Triber, 1998). The novel concept of intent to parent was articulated in a California Court of Appeals case; the court ruled that individuals who intend to and act to create a child through assisted reproduction technology become legally responsible for the resulting child, even where there is no genetic relationship to the child (In re Marriage of Buzzanca, 1998).
Although adoption is not a new phenomenon in family law, three trends merit attention: transracial, intercountry, and open adoptions. Intercountry and transracial adoptions are criticized on the grounds that parents whose racial, ethnic, or cultural identity differs from that of their children cannot provide an essential element of parenting in a society where racial and ethnic discrimination exists. Open adoption gives rise to a different controversy: the potential conflict between adopted children who seek information about and possible contact with birth parents and birth parents who may want to maintain anonymity.
The issue of transracial adoption arises primarily in the adoption of children in the foster care system whose parents’ rights have been terminated by the state. In 1999, the U.S. Department of Health and Human Services estimated that there were 117,000 children in the foster care system seeking adoption (Mosher & Bachrach, 1996). Of these, 51% were African American, 32% were white, and 11% were Hispanic. The groups most likely to adopt include childless women, women with fecundity impairments, white women, and women with higher levels of income and education. The number of transracial adoptions is unknown, but estimates range from 1% to 11% of all children in foster care (Avery & Mont, 1994; Stolley, 1993). With the majority of foster children ready for adoption being African American, and with white women seeking to adopt more frequently, transracial adoption deserves greater attention.
The federal government has enacted legislation to facilitate transracial adoption in the foster care system. The Howard Metzenbaum Multiethnic Placement Act of 1994 had the stated purpose of preventing discrimination in placement decisions on the basis of race, color, or national origin. In 1996, another federal law repealed and replaced the Multiethnic Placement Act with stronger provisions barring the use of race as a criterion in decisions about foster care or adoption placements (42 U.S.C.S. § 1996b). For those who question “whether white adoptive parents can raise Black children to be well-adjusted productive adults with a positive sense of racial identity,” the federal government’s promotion of transracial adoption is problematic (Perry, 1999, p. 470). Others may view the federal government’s response to the increasing number of African American children awaiting placement as consistent with a broader trend toward interracial marriage and partnerships (U.S. Bureau of the Census, 1999).
Intercountry adoption also raises the question of parental competency when the parents’ and the child’s race, ethnicity, or culture differ. Over the last 10 years or so, the number of children adopted in the United States from other countries has more than doubled, from 8,102 in 1989 to 20,099 in 2002 (U.S. Department of State, 2002). On October 6, 2000, President Clinton signed the Intercountry Adoption Act, ratifying the Hague Adoption Convention, which is designed to encourage intercountry adoption (U.S. Department of State, 2000).
Open adoption, in which adopted children are provided with information about and, in some cases, the choice to contact birth parents, is another example of society’s recognition that families can include more parties than two spouses and their biological children. Even though adopted children may desire information about or a relationship with their birth parents, birth parents may want anonymity. Adoption laws changed from relatively open records to sealed records by the mid-1960s (Cahn & Singer, 1999). In the 1970s, adoptees began challenging sealed adoption records, seeking access to birth certificates through the courts. Rejected by the courts, adoptees pursued legislative remedies with success. Most states now provide nonidentifying information about birth parents and have established procedures for contact when there is mutual consent. The first state laws making original birth records fully accessible passed in 1999, with efforts underway in other states. The Oregon statute was challenged, but the U.S. Supreme Court denied a motion that would have barred it from going into effect (Roseman, 2000).
Social Science and Family Law
Social scientists have increasingly played a role in legal processes pertaining to families (Mason, 1994), although this increase has been sporadic. This is partly because the relation between social science and law is complex and because many factors must be considered in formulating policy, not just the results of social science research. There is debate about the extent to which social science research has influenced family policy decisions (Bogenschneider, 2000). One reason for the limited influence of social science is that many of the shifts in family law (e.g., divorce reform, third-party visitation rights) were initiated by social forces rather than by research findings. Actually, social science has had more of a role in assessing the consequences of these changes (e.g., child custody decisions after divorce) than in initiating them.
Roles of Social Scientists in the Legal Process
Social scientists’ influence on law is often traced to the beginning of the 1900s, when empirical research gradually overtook the reliance on “natural” or “divine” law as informers of legal decision making (Mason, 1994). However, it was not until the last third of the 20th century that social science researchers had an explicit and substantial effect on legal processes in at least three ways: (a) informing public policy and legal reform, (b) developing interventions that were integrated into legal processes, and (c) serving as expert witnesses in court. Because the law tends to be more involved when families are undergoing transitions (e.g., divorce, adoption), the influence of social scientists has been greatest during these periods of change.
Informing Public Policy and Law
In the 1970s, social science theories became particularly influential in child custody after divorce (Mason, 1994). In fact, theories have had perhaps as great an impact as research. For example, one of the influential early social scientific works was written by Goldstein, Freud, and Solnit (1973), who introduced the notion of the “psychological parent” as the individual with whom the child is most closely attached and, by extension, the individual who should have complete (and possibly exclusive) custody rights. Although this was a concept rooted in attachment theory rather than in systematic empirical study, Goldstein et al. (1973) presented it as if it were empirically supported. Despite the lack of support, the notion of the psychological parent was frequently used by courts to choose which parent should be granted custody following divorce and/or to defeat a joint custody arrangement (Mason, 1994). It was also influential in justifying gender-neutral child custody decisions after divorce because the psychological parent could be either parent (Mason, 2000).
As findings accumulated, social science research was increasingly influential in court decisions. For example, research on the potential benefits of joint custody (Johnston, Kline, & Tschann, 1989) was used to justify policies that made joint custody the preferred custodial arrangement, and research on the well-being of children raised by gay and lesbian couples has informed court decisions regarding adoption rights for gay and lesbian couples (Patterson, 2000).
Social scientists have also influenced legal processes affecting families when social science interventions have become part of court proceedings. Two examples are mediation and parent education programs for divorcing parents. Divorce mediation attempts to help spouses negotiate divorce settlements in nonadversarial ways and has become popular, even mandated, in many jurisdictions. The elimination of fault-based divorce laws and a growing sense that the adversarial process leads to long-term negative outcomes contributed to the growth in mediation (Mason, 1994). There is evidence that mediation leads to positive outcomes, including lower relitigation rates, greater compliance with mediated agreements, and high rates of satisfaction with the process (Emery, 1995). But mediation is not without critics. For example, feminists have argued that mediation favors men because men have more power than women and because mediation is based on the assumption that fault should be left out of the process, which advantages men who may have oppressed their wives (e.g., spousal abuse) and/or have benefited from support provided by their wives in their careers (Emery, 1995; Mason, 1994).
Parenting education programs attempt to enable divorcing parents to more effectively help their children cope with the stressful divorce process. Even before the accumulation of data supporting their efficacy, these programs were mandated in almost half of the counties in the United States (Blaisure & Geasler, 1999).
Social Scientists as Expert Witnesses
Social scientists have become more frequent fixtures in legal proceedings as expert witnesses. Although there have been changes in standards used to determine if expert testimony is admissible, the most common one states that, to be admissible, evidence must be based on peer-accepted scientific methods and that the scientific evidence must be directly applicable to the issues in the specific trial (Siegel, 2000).
Social scientists as expert witnesses have probably had their greatest influence in the child custody determination process. As the best-interests-of-the-child criterion replaced maternal preference child custody laws, mental health professionals were called upon to provide evaluations regarding the parent with whom the child should reside. Further, because judges had more discretion than they did under maternal preference laws, they were more likely to call on experts to assist them in their decision making (Mason, 1994).
Limits of Social Science’s Influence on the Legal Process
Several factors have contributed to the slow, gradual, and limited influence of social science on legal processes.
Legal Professionals’ not Understanding Social Science Research
Courts, lawyers, and policy makers are not typically sophisticated consumers of social scientific research. They may not understand the limitations of research and may misinterpret the meaning of research findings. Consequently, social scientists must be careful to clarify the limitations of and the appropriate uses of their research and to educate legal and policy experts.
Legal Professionals’ Doubts about Social Science Research
Many legal professionals question the validity of social science research. Fueling the skepticism are disagreements among social scientists regarding certain issues (e.g., fathers’ importance to children’s development, the custody situations in which children fare best), the likelihood that two experts can reach diametrically opposing conclusions regarding the same case, and the tendency among some social scientists to prematurely advance a position in legal venues before it has support in the social scientific community. For example, parental alienation syndrome, which involves a child’s becoming estranged from a parent, has recently been used in custody hearings (Warshak, 2000). Although there is abundant research suggesting that children can experience deterioration in the quality of their relationships with parents after divorce, there is no compelling evidence to justify elevating this phenomenon to a syndrome. Social scientists who advance untested syndromes and disorders magnify underlying doubts about the integrity of social science research, at least partly because premature pronouncements in court settings inevitably are accompanied by critics of unsupported claims.
Expectations of Clear Findings
Policy makers, lawyers, and judges often take what has been described as a positivist approach to research, in that they expect it to provide clear, unambiguous, and objective answers to questions. However, social science research does not typically lead to unambiguous and unqualified findings. To some extent, social science and the law have opposing foundations. Most social scientists now adopt some variant of a postpositivist approach, which includes the premises that research is not objective and value free, that knowledge is not absolute but is context dependent (i.e., the context in which research is conducted and in which participants live affects findings in known and unknown ways), and that the views of researchers and other outsiders may differ from those of study participants. Thus, there is tension between the legal professionals’ desire for absolute and clear answers and most social scientists’ disinclination to provide such answers. This tension, and others, has led some to argue that social scientists should limit their involvement in legal proceedings, claiming that social scientific theories and research are sufficiently imprecise that experts, for example, could not accurately determine which parent would best serve the interests of the child (Weithorn & Grisso, 1987).
Research results can be selectively reviewed to advance political or ideological positions. For example, differing value stances affect how researchers (and others) interpret research on the effects of divorce on children and parents (Fine & Demo, 2000). Occasionally, research is misinterpreted to support a particular policy preference (Fine & Fine, 1994). For example, findings suggesting that children’s well-being was greater when they were in their mothers’ custody than when they were in mandatory joint custody arrangements (Johnston et al., 1989) were misleadingly used to justify the claim that joint custody, whether mandatory or voluntary, was inferior to sole custody for children.
Distinguishing between Theory and Data
Many legal professionals justify their arguments and decisions by using social science theoretical constructs that make intuitive sense to them. However, many concepts lack empirical evidence and thus can easily be challenged. For example, the claim that children will fare better with their psychological parent can be challenged by the competing claim that children will fare better living with two caring parents actively involved in their lives. Thus, legal reliance on theories to the exclusion of empirical research often contributes to criticisms that social science is soft, inconclusive, and ideological.
Differing Units of Interest
Social science research is generally designed to make generalizations about groups (albeit within the specific contexts in which they live) and tends to place less emphasis on exceptions (some qualitative research is an exception to this). Although policy makers need to base their decisions on soundly derived group generalizations, judges need to make decisions in individual cases. No matter how well any piece of research has been done or how sound its conclusions are, generalizations do not necessarily fit any specific individual. Therefore, research is necessarily limited in its ability to inform courts.
Differing Time Tables
Social science research takes time to complete. However, there are instances when policy makers and the court cannot afford to wait to make decisions regarding legislation and, perhaps more importantly, individual cases. Thus, decisions need to be made with or without sound research, and social scientists may be tempted to convey greater confidence in preliminary findings or the efficacy of interventions than is warranted.
Looking to the Future
It is possible to develop optimistic hypotheses about family law in the new millennium. With regard to marriage, divorce, and nontraditional relationship forms, it seems clear that the partnership model will continue to prevail over the earlier dependence model. The underlying economic and social changes relating to the role of women in society are not likely to be reversed. Alternative relationships, such as those between same-sex couples, will slowly receive recognition as society strives to create structures that support stable relationships in which children can thrive. However, resistance to nontraditional families and relationships will continue to generate legislative responses such as the Defense of Marriage Act and covenant marriage statutes. Child custody laws and laws relating to unwed fathers will continue to promote fathers’ parenting role, motivated in part by a desire to impose financial responsibility for child support. Similarly, nonparents will continue to gain access to children with whom they have close relationships, and laws will still struggle to mediate varying interests in stepfamilies.
The legal ambivalence toward gay or lesbian parents should gradually fade if evidence of their children’s well-being continues to accumulate. For families created through assisted reproduction technology and for stepfamilies, the courts and legislatures will continue to struggle with the interests of multiple parties. Recent reforms favoring transracial adoption may not endure: The pendulum could swing back in favor of same-race placements as Americans continue to struggle with race relations and racism. However, intercountry adoption seems unlikely to disappear. Individual countries may limit adoptions or make the adoption process more difficult, but economic pressures are likely to prevail.
Future Involvement of Social Science in the Law
As in the past century, shifts in family law are likely to be driven by demographic and social changes. Nevertheless, it is likely that social scientists will continue to influence legal processes. The factors that contributed to the increasing role of social science such as more judicial flexibility, greater legitimacy of social science research, greater likelihood of courts requiring intervention programs, and more need for expert testimony are likely to continue to expand social scientists’ roles in legal proceedings. We support the use of social science research to inform and guide the development of the law. To maximize the extent to which research affects the process of legal reform, social scientists need to appropriately qualify and explain their findings so that professionals not trained in research methods can understand their work. Social scientists may need to educate legal professionals regarding the limits of research and the difficulties inherent in drawing generalizations that apply across contexts. However, it is unlikely that the role of social science will dramatically increase in the next century.
In which areas of family law are social scientists likely to make their greatest contributions? Divorce, remarriage, adoption, and, in general, issues surrounding parenting and parent-child relationships will be in the forefront of social science contributions. For example, issues such as how children’s time will be allocated among divorced parents and the effect of parenting plans will be of great interest. In addition, as technologies change how families are formed (e.g., surrogate childbearing), social science research may be helpful in working through the delicate issues related to the roles, rights, and responsibilities of the multiple parties involved in these family processes. Overall, in the future, we can expect a continuing revolution in family law as the ways in which families are formed and maintained continue to evolve. We can also expect that both law and social science will be seriously challenged to keep up with the changes.