Introduction to the Special Collection on the Intersection of Families and the Law

Family Relations, October 2002 | Go to article overview

Introduction to the Special Collection on the Intersection of Families and the Law


Introduction to the Special Collection on the Intersection of Families and the Law*

In the U. S., citizens' rights are rooted in the founding documents of American democracy, the United States Constitution and Declaration of Independence. These documents protect citizens' individual rights against unwarranted government intrusion. As suggested by Williamson (1997), the Constitution protects citizens' rights through the application of four basic principles of America's democracy:

* Equality of Rights: Recognition and implementation in our public and private lives that all people are created equal and should be treated equally by the American government; equality of opportunity, although not guaranteed by the Constitution, is often thought to follow in the context of equality of rights.

* E Pluribus Unum: Despite our diversity, there is a national unity that focuses on the principles of equality, liberty, and the common good.

* Balance of Individual Liberty and Protection of the Common Good: It is the responsibility of the government to protect the well-being of citizens using a system of checks and balances to guard individual liberties, guaranteeing citizens freedom from unwarranted government intrusion.

* Religious Freedom: Citizens have the right to practice the religious faith of their choice.

Various interpretations of these documents and principles create legal tension among citizens because everyone does not share the views of Williamson (1977). Historically, citizens failed to reach consensus on the principle of equal rights and opportunity. At one point, we blatantly tolerated unequal treatment of women (Hoff, 1991) and Blacks (Bell, 1992) because laws existed on the local, state, and federal levels that limited or omitted their political involvement. They could not vote or did not have access to education and fair housing options. Special rights, instead of fundamental rights, still shape the legal debate as we struggle with the unequal treatment of lesbian and gay families (Harvard Law Review [HLR], 1980).

Currently, we face the challenge of balancing the rights of all citizens, including international residents, with the overall safety of all Americans. The potential use of a national identification card and other national security measures are examples of the legal tension associated with the principles of liberty interests and equal protection versus protecting our society and way of life. Research on issues of privacy rights as influenced by the terrorist attacks of September 11, 2001, holds promise for family scholars as we seek to determine the legal impact of September 11th on U.S. and international families.

Although these principles are not mutually exclusive, an important aspect of contemporary family law is the balance of individual liberty and the protection of the common good. We seek to honor parental autonomy (i.e., Meyer v. Nebraska, 1923; Pierce v. Society of Sisters, 1925; Wisconsin v. Yoder, 1972) while protecting the rights of children (i.e., Prince v. Massachusetts, 1944; Wisconsin v. Yoder). We want protection against unwarranted government intrusion on parental and family autonomy balanced with the nation's responsibility to protect children from maltreatment or threat of harm (i.e., In re C., 1977; State v. Thorpe, 1981). We desire to promote strong family values with the recognition of the diverse, complex familial issues associated with grandparent visitation rights, lesbian and gay parents, reproductive technologies, and stepparent rights and responsibilities. Despite our ideological continuum of liberal, moderate, or conservative, each of us desires to promote healthy families and the best interests of children. In this special collection, we encourage our readers to look at family law against the backdrop of the balance of rights within and across families.

Over the last 12 years, 14 articles appeared in Family Relations that specifically focused on family case law or presented research based on court cases or the experiences of attorneys and judges (see Table 1). During the same period, state and federal courts issued many decisions affecting family life and the legal context in which families live. We recognize the need for additional scholarship focused on family law in a family science context. We also recognize the needs of individuals and families who interact with the legal domain and are supported by family professionals serving in a variety of practitioner roles. For example, we have witnessed the increasingly important role mediators play as an impartial third person assisting families facing divorce, child custody, special education disputes, and other school-related conflicts. This is one career choice of family professionals interested in the intersection of families and the law (Emery & Wyer, 1987; Malia, Cummingham, & Wynn, 1995), as a practitioner who is well-served by the type of scholarly research presented herein. Monroe (1988) focused on family scientists working in a legislative domain, but the roles she outlined are transferable to work within the judicial system. She suggested that family professionals influence the legislative process as technicians, entrepreneurs, and politicians. In this classification scheme (adapted from work by Meltzer, 1972), technicians conduct research that expands the knowledge of social science; entrepreneurs conduct policy analysis; and politicians actively engage in legal decision-making as judges, attorneys, expert witnesses, and mediators. In this special collection, we address the need for additional scholarship on the intersection of families and the law in service of family scholars and practitioners.

The Relationship Between Families and the Legal System

What is the intersection of families and the law? Laws related to marriage, sexual relations, parenthood, family disruption, and child custody directly influence families (Pyle, 1994). Indirectly many more laws influence individuals and family life. Consider, for example, a zoning ordinance adopted by the city of East Cleveland in the mid-1970s that only allowed single families, meaning parents and children, to reside in a housing development. A grandmother who lived with her son and two grandsons was convicted of violating this ordinance because the grandsons were cousins rather than brothers. The U.S. Supreme Court reasoned that the ordinance violated the grandmother's liberties as protected by the due process clause of the 14th Amendment. Although the government had an important interest in protecting citizens of East Cleveland against overcrowding, congested traffic and parking, and undue financial stress on the city's school system, it also had an interest in promoting the substantive due process rights of a grandparent-led household. In this instance, the U.S. Supreme Court did not limit family autonomy to the traditional family of two heterosexual parents with children (Moore v. the City of East Cleveland, 1977):

Ours is by no means a tradition limited to respect for the bonds uniting the members of the nuclear family. The tradition of uncles, aunts, cousins, and especially grandparents sharing a household along with parents and children has roots equally venerable and equally deserving of constitutional recognition. Over the years millions of our citizens have grown up in just such an environment, and most, surely, profited from it. Even if conditions of modern society have brought about a decline in extended family households, they have not erased the accumulated wisdom of civilization, gained over the centuries and honored throughout our history, that supports a larger conception of the family (Moore v. the City of East Cleveland, 1977, p. 8).

Amazingly in this instance, debate over a zoning ordinance, not a child custody case or a divorce proceeding or an adoption decision, allowed justices an opportunity to shape the definition of the family.

On the other hand, changes in families may drive the construction of state and federal laws. Prior to 1986, grandparents had no legal right to visit their grandchildren. However, during the 20th century, proximal and distal changes in families set the foundation for the emergence of grandparent visitation statutes. These changes included lower fertility rates, longer life expectancy, increased family disruption, and an increase in the number of older adults experiencing grandparenthood (Aldous, 1998; Hooyman & Kiyak, 1996). Some of these factors are related to the enactment of grandparent visitation statutes (Hill, 2000). These dynamic changes are yet another motivation for this collection of articles to expand our knowledge and understanding of the intersection of families and the law.

The Special Collection

In this special collection, researchers address some critical family law issues using a combination of research, strategic, and review articles. The primary themes addressed in the articles of this special collection are parental rights and responsibilities, family disruption, and guardianship. A more applied approach to the intersection of families and the law are found in articles on the "family relations doctrine" and teaching family law using cooperative learning.

Parental Rights in Multiple Contexts

Skinner and Kohler address the theme of parental rights with a critique of the legal status of parents in several familial contexts. After explaining the parental rights doctrine, they examine who has parental rights among adoptive parents and stepparents. They also examine how grandparents' statutory right to petition for visitation with their grandchild challenges the legal protections afforded parents. Gay and lesbian parents and families using reproductive technologies show how the courts continue to struggle with embracing the principles of balance of rights and equal protection under the law for nontraditional families. The authors acknowledge parents' legal right to teach their children their religious precepts and to make educational, health care, and disciplinary decisions for their child but they remind readers that these rights are not absolute. To address the obstacles faced by parents in multiple contexts, the authors recommended a revised parental doctrine that provides for healthy families, stabilizes the lives of children, and honors the diversity among and within families.

Hans focuses on stepparents who seek custody of or access to their stepchildren following a divorce. He begins with a review of the human development research that demonstrates the importance of positive parent-child dyads in a variety of familial contexts, including stepfamilies. Hans reviews the legal challenges to stepparents who are seeking child custody. These challenges involve stepparents obtaining legal standing or a right to be heard before a court, adhering to family law traditions of parental preference, and maintaining a traditional interpretation of the best interests of the child standard that limits government intrusion upon the rights of biological and adoptive parents. He delineates stepparent access and support obligations before recommending some principles and approaches that provide for the best interests of children and honors parental rights.

Issues Related to Family Disruption and Divorce

The next group of scholars address issues related to family disruption and divorce: alimony, no-fault divorce, and child custody. Family laws evolved through the years in response to sociopolitical events and changing beliefs toward the rights of individuals and families. In colonial times, citizens used a variety of methods to divorce, including an annulment or divorce based on adultery or desertion (Mintz, 1992; Pyle, 1994). Southern colonies saw no need for divorce procedures, whereas Northern colonies like Massachusetts and Connecticut recognized the need (see Mintz and Pyle for a more extensive review).

To examine contemporary issues related to family disruption and divorce, Shehan, Berardo, Owens, and Berardo outline key issues related to alimony or spousal support. After giving the background and definitions of alimony, the authors recapitulate the factors that justices consider when rendering alimony decisions. Justices may consider the length of the marriage, the earning capacity of the spouse seeking alimony, and the ability of the spouse to maintain a similar standard of living. Modifications in, enforcement of, and compliance with alimony orders exhibit the legal complexities surrounding alimony and the economic well-being of families following a divorce. Before giving readers their proposed reforms, Shehan and associates discuss the intersecting issues of no-fault divorce, changing gender roles, and alimony.

Vlosky and Monroe continue to elaborate the issues related to family disruption and divorce by revisiting no-fault divorce. As they reviewed the social science research to determine the influence of no-fault divorce on state divorce rates over time, they found conflicting evidence depending on which dates of state adoption of no-fault laws were used. To bring standardization to this field of study and to suggest a method for resolving similar questions, Vlosky and Monroe reviewed prior research and studied divorce laws of the last half of the 20th century for all 50 states. Then, on the basis of the data, they developed a set of decision rules for determining the dates for the adoption of no-fault divorce laws.

Braver, Cookston, and Cohen surveyed attorneys to get their views on several child custody issues. In this study, they conducted research in the ecologically valid setting of a state bar conference, overcoming some of the methodological challenges posed in doing social science and interdisciplinary research with practicing family law attorneys. Attendee-participants shared their experiences on relocation disputes among divorced parents, family court advisors, lawyer behaviors, and gender bias in custody litigations. The authors reported that most parents who lose their petition to relocate do not or would not move; family court advisors appear to be assisting families; the behaviors of attorneys may increase the level of conflict; and gender bias toward mothers was moderately related to child custody disputes.

Because we look to justices to balance the individual rights of a citizen against the overall well-being of all citizens (Mnookin & Weisburg, 1993), Holtzman's article addresses one way to balance the rights of citizens when rendering child custody decisions. Similar to Skinner and Kohler, she begins with an explanation of parental rights. Holtzman also reviews parental preference and psychological parent doctrines before offering an alternative approach to legal decisions related to child custody. On the basis of legal precedence related to the constitutional protections given to unwed fathers, she develops a comprehensive family relations doctrine, aimed at balancing and protecting the rights of parents and promoting the best interests of children.

Guardianship

To protect vulnerable citizens as guardians or parents, the government may act as "parent of the country" to protect the interests of all citizens (Black, Nolan, & Nolan-Haley, 1991) by invoking its parens patriae or police powers (HLR, 1980). In the case of children, the government is the ultimate parent and protector (HLR; Mnookin & Weisburg, 1993). Justices also use the best interests of the child standard to protect children from threat of harm or to find an alternative that minimizes potential harm to a child (Mnookin & Weisburg). Research by Teaster examines the experiences of public wards, adults who legally are the minor children of the government, giving voice to one group of this country's most vulnerable citizens. Teaster gives readers a brief overview of the issues related to guardianship. Using democratic theory and multiple data collection processes to ground her research, she finds that wards experience feelings of loneliness and fear and that they lack an understanding of and satisfaction with the caregiving of their public guardian.

One Application: Teaching Family Law Content

The current special collection builds on the 14 articles published in Family Relations on family law between 1989-2001 and on the need for additional research on family law issues. However, research is not the only missing link between the disciplines that deal with families and the law; teaching family law remains a "road less traveled." In their article on teaching, Henderson and Martin provide instructors with an overview of a family law course that includes strategies and model assignments to utilizing cooperative learning as the core pedagogy. They explain why cooperative learning is an appropriate approach to teaching family law, what content is appropriate in a family law course, how to construct a family law course, and how to integrate family law in a cooperative learning environment. The authors suggest course activities and readings that will be of great practical value to instructors who wish to use this special collection and other family law materials in their classrooms.

Summary and Reflection on Future Topics

This special collection addresses contemporary family law issues related to parental rights, family disruption, and guardianship. Using the balance of rights as the lens, authors demonstrate how laws influence families in their manuscripts on parental rights, stepparent rights and responsibilities, alimony, and no-- fault divorce. The voices of attorneys and public wards exemplify the influence of the law on individual and family development. All the authors share how family professionals may influence the legal process; however, Holtzman's entire article focuses on the family relations doctrine to protect the rights of parents and promote the child's best interests. The collection closes with a teaching article that advocates cooperative learning as a recommended teaching pedagogy; the authors of this article provide instructors with insight and creative ideas toward introducing generations of students to the intersection of families and the law.

The authors included in the special collection pave the way toward a better understanding of family law and the government's role in addressing the principle of balance of individual liberty and protection of the common good. Through the authors' work presented here, we get a glimpse into the liberty and protection issues faced by relatively invisible family groups, such as lesbian and gay parents, grandparents seeking visitation with their grandchildren, and families using reproductive technologies. We recognize additional research is needed on families in all of these contexts. As we look at the social constructions of parents and family, we must not forget the issues of race, gender, and class within the legal system. Also, as we face globalization and economic uncertainty, family professionals are essential members in the discussion about the intersection of diversity and equality, as this nation attempts to balance the rights of individuals with the general well-being of all citizens, including immigrants to our country.

[Reference]

References

[Reference]

Aldous, J. (1998). Public policy and grandparents: Contrasting perspectives. In M. E. Szinovacz (Ed.), Handbook on grandparenthood, (pp. 230-246). Westport, CT: Greenwood.

Black, H. C., Nolan, J. R., & Nolan-Haley, J. M. (1991). Black's law dictionary. St. Paul, MN: West.

Bell, D. (1992). Race, racism, and American law. Boston: Aspen Law & Business.

Emery, R. E. (1995). Divorce mediation: Negotiating agreement and renegotiating relationships. Family Relations, 44, 377-383.

Emery, R. E., & Wyer, M. M. (1987). Divorce mediation. American Psychologist, 42, 472-480.

Harvard Law Review. (1980). Developments in the law: The Constitution and the family. Boston: Author.

Hill, T J. (2000). Legally extending the family: An event history analysis of grandparent visitation rights laws. Journal of Family Issues, 21, 246-261. Hoff, J. (1991). Law, gender, and injustice: A legal history of U. S. Women.

New York: New York University Press.

Hooyman, N., & Kiyak, H. A. (1996). Social gerontology: A multidisciplinary perspective (4th ed.). Needham Heights, MA: Schuster & Schuster.

In re C. 91 Misc.2d 677, 398 N.Y.S.2d 511 (N.Y. Fam. Ct. 1977).

Mafia, J. A., Cunningham, J. L., & Wynn, E. (1995). Expanding the policy infrastructure for resolving family-related disputes: Mediation as a technology. Family Relations, 44, 19-27.

Meltzer, A. (1972). Political feasibility and policy analysis. Public Administration Review, 32, 858-867.

Meyer v. Nebraska, 262 U.S. 390 (1923).

Mintz, S. (1992). Children, families, and the state: American family law in historical perspective. Denver University Law Review, 69, 635-661.

Mnookin, R. H., & Weisburg, D. K. (1993). Child, family, and state: Problems and materials on children and law (2nd ed.). Boston: Little, Brown. Monroe, P A. (1988). Career options in public policy for family scientists. Family Relations, 37, 344-347.

Moore v. the City of East Cleveland, 431 U.S. 494; 97 S. Ct. 1932; 1977 U.S. LEXIS 17; 52 L. Ed.2d 531. Retrieved December 12, 1998, from http:// www.lexis-nexis.com

Pierce v. Society of Sisters, 268 US. 510; 45 S. Ct. 571; 1925 U.S. LEXIS 589; 69 L. Ed. 1070; 39 A.L.R. 468.

Prince v. Massachusetts, 321 U.S. 158 (1944).

Pyle, R. C. (1994). Family law. Albany, NY: Delmar. South Carolina v. Katzenbach, 383 U.S. 301 (1966). State v. Thorpe, 429 A.2d 785 (R.I. 1981).

Williamson, M. (1997). The healing of America. New York: Simon & Schuster. Wisconsin v. Yoder, 406 U.S. 205 (1972).

[Author Affiliation]

Tammy L. Henderson** and Pamela A. Monroe

[Author Affiliation]

*We thank Kay Pasley and Michelle Stevenson for their excellent scholarship and support in developing this special collection on The Intersection of Families and the Law.

**Human Development (0416), 401-B Wallace Hall, Virginia Polytechnic Institute and State University, Blacksburg, VA 24061-0416 (thender@vt.edu).

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