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Introduction: On Bridging the Divide Between Family Law and Family Life

Jessica Dixon Weaver

The featured articles in this issue were developed from a collection of papers presented at the Family and Juvenile Law joint program during the 2018 Association of American Law Schools Annual Meeting. The Sections on Children and the Law and Aging and the Law co-sponsored this program, which was entitled “Keeping Up with the Changing Face of the American Family.” The concept derived from the observance of significant changes over the last sixty-five years in the composition and structure of families in the United States. From the decline of marriage and fertility to the increase in blended families, interracial relationships, and single parenthood, the face of the family is visibly different. The legalization of same-sex marriage, the rise in the number of working women and fathers who share in household and childcare responsibilities, and the growing number of aging family members who need daily care have impacted how families function. In some ways, federal and state family laws precipitated these changes and opened the door for the new trends, but in other ways, the law has been mired in tradition, making it more difficult for the modern family to operate.

This issue explores the ways in which family law and other, related laws lie behind the curve in areas such as reproduction, custody, companionship, and caretaking. Our featured articles also examine the various consequences of this gap between law and the realities of families today and consider ideas and current efforts being made to close the divide.

The articles span a wide range of topics, from new developments in the intimate relationships of the Baby Boom generation to discrimination faced by lesbian mothers within the child welfare system. All highlight how family formation is impacted by socio-legal policy and how legal regulation of families outside the normative family has not caught up with the real lived lives of modern day families. Four esteemed family law professors offer dynamic contributions to this issue. We are also pleased to present in this issue the 2017 and 2018 winners of the Howard C. Schwab Memorial Essay Contest. These articles also explore an array of topics arising out of the gap between family life as lived today and a legal system that has not yet caught up with changing realities.

Professor Cynthia Bowman is the author of the first featured article, Living Apart Together as a “Family Form” Among Persons of Retirement Age: The Appropriate Family Law Response. LAT (“living apart together”) is the social phenomenon popular among Third Age persons (those sixty-five years and older); it is explored as a new family form in the United States that displays a variety of characteristics of marriage without the traditional economic and legal commitment. The article examines the benefits of LAT for older women in particular and compares data from the studies of LAT in Europe and Canada with the author’s empirical data based in large part on interviews with four LAT couples in New York. It concludes by analyzing the legal benefits for LAT couples who maintain their autonomy and by considering whether there should be changes to the law to accommodate the caretaking functions they perform over long periods of time.

Multipartner Fertility in a Disadvantaged Population: Results and Policy Implications of an Empirical Investigation of Paternity Actions in St. Joseph County, Indiana, is a window into a growing aspect of contemporary family life. Professors Margaret F. Brinig and Marsha Garrison provide critical empirical data for parents who have produced at least two children with two different partners. Noting how multipartner fertility (“MPF”) has long existed, authors Brinig and Garrison point to the increase in MPF and the factors that make it more likely that the children in these types of families are poor and will face discrimination and other negative conditions linked to low socioeconomic status. Many of these negative outcomes are connected with the financial and relational disengagement of MPF fathers and shifts in the children’s environments, such as their neighborhoods and schools, which result in lower educational achievement. The study population of almost 700 parents is disproportionately composed of the most disadvantaged and most fragile nonmarital families. Using demographic variables, Brinig and Garrison were able to identify MPF predictors for mothers and fathers, noting for the first time that residential instability is an important one. This study reveals key areas for future research to improve the lives of MPF parents, including other predictive factors such as the runaway history of MPF mothers, and negative predictors such as conviction for a serious felony and juvenile history for MPF fathers. It also provides a vital look at the impact of MPF on children; notably, it increases the likelihood of child maltreatment. This article concludes with suggestions for improving the outcomes for young adults and their children.

In The Golden Years, Gray Divorce, Pink Caretaking, and Green Money, Professor Naomi Cahn continues the exploration of the changing family structure by considering the impact of economic security and caretaking on Baby Boomers. This piece highlights how the decline of marriage and divorce rates among aging individuals results in less economic security, a growing poverty rate, and fewer options for caretaking within the private family. It sets forth that the legal structure for caregiving and economic stability is grounded in the marital family, and it describes how those who fall outside of this structure are more vulnerable and likely to age without the benefits that allow for more health assistance and financial support. It concludes by proposing systemic policy changes to Social Security, federal employment laws, and retirement support options that will strengthen the safety net for those who earn the least and those who provide care for the increasing numbers of the elderly in our population.

Professor Nancy Polikoff has authored Neglected Lesbian Mothers, which sheds light on the underexplored issue of differential, negative treatment of lesbian mothers whose children have been removed by the child welfare system. This contribution examines why lesbian mothers have been invisible in the studies of parents affected by child removals and subsequent termination of parental rights. It presents three legal issues that require immediate attention: discrimination against same-sex parents, especially from faith-based child placement agencies; accurate identification of parentage; and identification of relatives or family members available for child placement. It concludes with a call to action for LGBT advocates to initiate research, reforms, and litigation to fight for the rights of this susceptible group of parents.

These featured articles present new data and information about how family structure, identity, and status impact how senior citizens live together; how young adults partner and have children; whether the elderly have economic security and caretaking as they grow older; and how being a lesbian mother impacts the outcome of termination of parental rights cases. They shed light on new developments regarding how families live and adjust to negative circumstances, and how our laws can change to improve their situations. It is our hope that they serve as a catalyst for legal reform in a variety of areas that impact today’s ever-changing family.

Jessica Dixon Weaver

Issue Editor

Editorial Board Member, Family Law Quarterly

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Jessica Dixon Weaver

Issue Editor, The Changing Face of Family Law, Spring 2018 Family Law Quarterly (Vol. 52, Issue No. 1); Editorial Board Member, Family Law Quarterly; Associate Professor of Law, SMU Dedman School of Law