Family Law Quarterly
Volume 42, No. 3 (Fall 2008)

Golden Anniversary Issue

Table of Contents

Editor's Note      
Linda D. Elrod (Cricket)

Five Decades of Family Law

Sanford N. Katz

The author moves decade by decade through the last fifty years, tracing the important family law developments and U.S. Supreme Court and family law court decisions that have shaped the period. He also discusses the social changes and legislation that have shaped family law and practice.

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Nonmarital Cohabitation: Social Revolution and Legal Regulation

Marsha Garrison

This article analyzes the sources and results of increasing nonmarital cohabitation as well as family law's response to it over the last fifty years. The author notes that although the California Supreme Court's widely cited decision in Marvin v. Marvin appeared to inaugurate a new era of expanding law and rights for nonmarital cohabitants, courts and legislatures—both within California and outside of it—have responded to Marvin quite cautiously. She surveys the research data on cohabitation and concludes a cautious approach is justified and that a more dramatic legal response to nonmarital cohabitation is at this point unwarranted.

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Golden Anniversary Reflections: Changes in Marriage After Fifty Years

Ann Laquer Estin

Marriage and the changes in marriage over the past fifty years have been profoundly connected to the broader currents of law, politics, and society. This article sketches some of the important shifts in marriage law over the past half-century and then turns to the present debates over the future of marriage. The image she captures, reflects both what marriage has become and the essence of what it has always been.

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Domestic Violence Law Reform in the Twenty-First Century: Looking Back and Looking Forward

Elizabeth M. Schneider

This article highlights some of the most important developments in law reform concerning domestic violence over the past fifty years. The author explores changes in recognition of the problem and the pervasiveness of intimate violence in the United States and the world. She also discusses the important contradictions and conflicts that present challenges for legal work going forward and how to make the new visibility of domestic violence meaningful, particularly in family law.

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Child Support Fifty Years Later

Laura W. Morgan

This article traces the changes in child support over the last fifty years. The author notes that fifty years ago, child support orders were based on the obligor's ability to pay as weighed against the needs of the child. But a sea change, which began in the 1960s and built on John Kenneth Galbraith's vision of The Affluent Society, has resulted in modern child support law that shifts the obligation of support from the taxpayer to the parent. As stated by Congress, "The problem of welfare in the United States is, to a considerable extent, a problem of the nonsupport of children by their absent parents." Thus Congress passed the Family Support Act, requiring states receiving AFDC funds to establish and enforce child support obligations. Next, came enactment of Title IV-D, which thus gave the federal government the role of active stimulator, overseer, and financier of state collection systems. The author traces changes in the law and practice and the expansion in terms of who is liable for support.

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Paradigm Shifts and Pendulum Swings in Child Custody: The Interests of Children in the Balance

Linda D. Elrod and Milfred D. Dale

The last fifty years of child custody law reflect paradigm shifts and pendulum swings in the prevailing scientific and societal views of what is in the "best interests" of a child. The evolution of the law tracks changes, shifts, and sometimes divergent perceptions of the needs of children and families, particularly those involved in conflict. The trend has been away from broad judicial discretion to a more rules-based approach. For each change that has inspired hope for better, easier, or more efficient ways of resolving painful family conflicts and dilemmas, there have been frustrations and uneven results. Not every change has been progress.

This article explores five decades of child custody law, starting with the changes in families and the problems caused by high conflict families. It also discusses the legal changes from presumptions to factor-based best-interests-of-the-child analysis, and outlines how the court systems have adapted to different mandates and tasks, as well as to the growing numbers of high-conflict cases. Lastly it sets out the increasingly complex role of mental health professionals in custody disputes.

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Changes in the Economic Consequences of Divorces, 1958-2008

J. Thomas Oldham

This article, part of an issue that surveys changes in family law over the past fifty years, discusses how the economic consequences of divorce have changed during the period. This article surveys some of the various social changes that have had an impact, such as changes in the divorce rate, changes in the characteristics of divorcing couples, and changes in women's participation in the work force. Some family law legal changes are also discussed, such as the acceptance of equitable distribution and changes in rules applicable to spousal support.

Other legal changes are mentioned, such as the acceptance of premarital agreements, the adoption of Medicare, and the acceptance of no-fault divorce. The article notes that some very general consensus seems to be evolving regarding child support awards and marital property rules. In contrast, very different (and frequently unclear) standards are applied across the country regarding spousal support. The article discusses recent developments in Canada regarding the adoption of advisory spousal support guidelines as one potential avenue to increase predictability of spousal support awards in the United States.

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A Short History of Child Protection in America

John E.B. Myers

This article chronicles the history of child protection in American. The author notes three eras: from colonial times to 1875, which is the period before organized child protection; 1875 to 1963, which witnessed the creation and growth of organized child protection through nongovernmental child protection societies; and then 1962 to the present, the era of government-sponsored child protective services. The author points to defining social events and movements in each period, important legislation that shaped each era, and the ongoing challenges.

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Race Matters in Adoption

Ruth-Arlene W. Howe

In Part I of this essay, Professor Howe shares some personal concerns that the real needs of African-American children and families are not met if race is ignored. The findings and recommendations of the May 2008 Evan B. Donaldson Adoption Institute paper: Finding Families for African American Children: The Role of Race & Law in Adoption From Foster Care are reviewed in Part II. Next in Part III, Professor Howe discusses the current Child Welfare League of America (CWLA) Standards of Excellence for Adoption Services—the lens through which the Adoption Institute assessed the efficacy of current federal laws. Professor Howe concludes by urging members of the family law bar to endorse the Adoption Institute study recommendations and to work for their expeditious implementation.

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Federal Law and State Intervention When Parents Fail: Has National Guidance of Our Child Welfare System Been Successful?

Howard Davidson

This article explores federal child protection policy and practice. It explores federal guidance as to courts' child welfare agency oversight and whether it has helped address concerns. The author chronicles legislative efforts in child welfare and child abuse and neglect as well as federal mandates to improve foster care and permanency planning for children. He cautions that the rubber stamp of judicial approval of what agency caseworkers report is still something against which advocates must constantly be on guard.

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The Changing Face of Family Law: Global Consequences of Embedding Physicians and Biotechnology in the Parent-Child Relationship

George J. Annas

This article asks whether biotechnology-based changes in human reproduction should be the domain of family law, health law or even international law. The author looks at the new reproductive technologies, early in-vitro-fertilization policy, courtroom confrontations and contracts, and globalization and genetic engineering. He cautions that science and medicine have become so powerful, both in terms of making lives better and raising the risk of species suicide, that we can no longer abdicate our mutual responsibility to each other as members of the human species. Reprogenetics, he concludes, with its promise of better babies and ultimately a better class of humans, presents a unique challenge to law generally and to family law in particular.

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The Constitutionalization of Family Law

David D. Meyer

This article explores the transformative constitutionalization of American family law over the past fifty years. The author surveys the changes and their implications; describes how family law has been significantly altered by constitutional review; traces U.S. Supreme Court constitutional protections of the family; examines leading concerns about this trend; and surveys the most recent constitutional rights for children, nonparent caregivers, and same-sex partners. He concludes that this trend toward constitutionalization shows no signs of letting up, but at the same time he believes that family privacy protections in the years ahead will grow broader and weaker and ultimately will resemble the discretionary, fact-intensive family law of old.

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American Law Institute's Principles of the Law of Family Dissolution, Eight Years After Adoption: Guiding Principles or Obligatory Footnote?

Michael R. Clisham and Robin Fretwell Wilson

The American Law Institute's Principles of the Law of Family Dissolution: Analysis and Recommendations (Principles) arguably represent the most sweeping attempt at family law reform in the last quarter century. Published in 2002 to great fanfare, the New York Times predicted that the Principles "are likely to have a major impact." This article presents the first comprehensive, empirical study of the Principles' impact since their adoption in 2000. Unlike the ALI's Restatements of the Law, which have been directed mainly at the courts, the Principles were directed at state legislatures as well. Thus, the authors examined the state code and legislative history databases in Westlaw and LexisNexis for any legislation referencing the Principles since to project's inception in the early 1990s. Although one state, West Virginia, borrowed from the Principles in enacting child custody legislation, no state code section or proposed legislation has referenced the Principles since 1990. While the authors cannot say definitively that the Principles have not had some legislative influence somewhere, if legislatures are borrowing from the Principles, they are certainly not tipping their hands.

The Principles have had more success with the courts, yet even this impact is slight and mixed. A mere 100 cases have cited to the Principles since 1990, less than half the number of cases that cite to two treatises published contemporaneously with the Principles. Courts reject the Principles' recommendations more often than they accept them, by a ratio of 1.5 to 1. By far and away, courts most often use the Principles to "pile on"-that is, to bolster the court's holding in a case that would have come out the same way in the absence of the Principles (24.24% of citations). While it remains to be seen what will ultimately come of the Principles, it is evident that the Principles are not having a significant effect with the two groups at which they directed.

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Codification, Cooperation, and Concern for Children: The Internationalization of Family Law in the United States Over the Last Fifty Years

Merle H. Weiner

This article examines the changes in international family law over the last fifty years and finds them important but modest compared to other significant doctrinal transformations in the field. The author suggests that many new statutory provisions address issues that relate to children: child custody, adoption, and child support. She describes these laws and discusses the forces that have contributed to the increase in legislative activity. She points to the Central Authorities and Special Commissions, which have fostered cooperation, built trust, and contributed to the likelihood that the United States will join international instruments in the future. She concludes that increased cooperation on the international level is mirrored by increased cooperation at home between the federal government, states, and law reform organizations. Such domestic collaboration helps address "federalism" concerns, thereby minimizing an obstacle to U.S. participation in family law treaties.

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Family Court Reform and ADR: Shifting Values and Expectations Transform the Divorce Process

Nancy Ver Steegh

The divorce process has undergone a remarkable transformation over the last fifty years. This article examines the sweeping breadth of the changes and the underlying societal forces behind them. The author describes how alternative divorce processes and services for families have proceeded, describes the changing roles for lawyers, how courts are managing cases, and what declining financial resources mean for ADR and family court reform generally. Although a lack of judicial resources has fueled some of the changes, the author warns that deep funding cuts foreshadow a less positive transformation, potentially resulting in a two-tiered system of justice for families.

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Uniform Family Laws and Model Acts

John J. Sampson

This article discusses enactment and promulgation of the various uniform family laws and model acts over the last fifty years.

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Two Generations of Practitioners Assess the Evolution of Family Law

Samuel V. Schoonmaker, III and Samuel V. Schoonmaker, IV

Change! Change! Change! The last fifty years have seen a revolution in virtually every aspect of family law and practice, bringing unimaginable changes. Among the ten most influential are the changes in the concept of the family, the way we look at marriage, the increasing divorce rate, the specialization of practice due to creeping federalism, emergence of alternative dispute resolution, and the enhancement of rights for children. The changes have profoundly affected the lawyers who have dedicated their legal careers to serving families.

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Publication Date: January 2009