Family Law

What is Family Law?

Family law is an area of the law that deals with family-related issues and domestic relations including, but not limited to marriage, civil unions, divorce, spousal abuse, child custody and visitation, property, alimony, and child support awards, as well as child abuse issues, and adoption.

This list is by no means dispositive of the potential issues that come through the family court system. In many jurisdictions in the United States, the family courts see the most crowded dockets. Litigants representative of all social and economic classes are parties within the system. Because the family courts are notoriously underfunded and see a relatively large proportion of economically dependent litigants, a common criticism levied is that the system inherently prejudices the needs of these disadvantaged parties.

What is Marriage?

Marriage is a relationship and bond between individuals that plays a key role in the definition of many families.

In modern times, the term marriage is generally reserved for a state sanctioned union. The phrase legally married can be used to emphasize this point. In the United States there are two methods of receiving state sanction of a marriage: common law marriage and obtaining a marriage license. The vast majority of US states to do permit common law marriage. Many localities do support various types of domestic partnerships.

In the West marriage has evolved from a life-time covenant that can only be broken by fault or death to an contract that be broken by either party at will. Other shifts in Western marriage since WWI include: (a) Unlike the 1800s women not men get child custody over 80% of the time, (b) both spouses have a formal duty of spousal support (no longer just the husband), (c) Womem can vote (i.e., coveture no longer applies),(d) Out-of-Wedlock children have the same rights of support as legitimate children, (e) in most states rape can legally occur within marriage and be punished, (f) husbands may no longer physically discipline/abuse their wife, and (g) property acquired since marriage is not owned by the Title-holder. This property is considered marital and to be divided amoung the spouses by community property law or equitable distribution via the courts. There is a growing debate about the form(s) that marriage should take. Two of the most hotly-debated variants are same-sex marriage and polygamy.

Typically, marriage is the institution through which people join together their lives in emotional and economic ways through forming a household. It often confers rights and obligations with respect to raising children, holding property, sexual behaviour, kinship ties, tribal membership, relationship to society, inheritance, emotional intimacy, and love.

Marriage sometimes: establishes the legal father of a woman's child; establishes the legal mother of a man's child; gives the husband or his family control over the wife's sexual services, labor, and/or property; gives the wife or her family control over the husband's sexual services, labor, and/or property; establishes a joint fund of property for the benefit of children; establishes a relationship between the families of the husband and wife. No society does all of these; no one of these is universal.

Marriage has traditionally been a prerequisite for starting a family, which usually serves as the building block of a community and society. Thus, marriage not only serves the interests of the two individuals, but also the interests of their children and the society of which they are a part.

What is Civil Union?

A civil union is one of several terms for a civil status similar to marriage, typically created for the purposes of allowing homosexual couples access to the benefits enjoyed by married heterosexuals (see also same-sex marriage); it can also be used by couples of differing sexes who do not prefer to enter into the legal institution of marriage but who would rather be in a union more similar to a common-law marriage.

Many different types of civil unions exist. Some are identical to marriage in nearly every respect except name; some have many but not all of the rights accorded to married couples (sometimes called Registered Partnerships); some are simple registries (also called domestic partnerships.)

Some jurisdictions that have passed civil unions include Vermont (2000) and Connecticut (2005) in the United States; Quebec and Nova Scotia in Canada; France and Denmark (1989), Norway (1993), Sweden (1994), Iceland (1996), Finland (2000), Germany (2001), Portugal (2001), the Swiss canton of Zurich (2002), the Argentine city of Buenos Aires (2003), and New Zealand and the Australian state of Tasmania (2004).

In 2001, the Netherlands gave same-sex marriage equal status with opposite-sex marriage, in addition to its 1998 "registered partnership" law (civil union) for both same-sex and opposite-sex couples. Belgium did likewise in 2003. Between June 2003 and June 2005, courts in eight provinces and one territory of Canada extended marriage to include same-sex couples. Bill C-38, extending same-sex marriage throughout Canada, was passed by the House of Commons on June 28, 2005, and is being considered by the Senate. Gay marriage is also legal in the U.S. state of Massachusetts. See same-sex marriage.

A much larger number of jurisdictions, largely individual municipalities and counties, have passed rules to register same-sex unions; for information on this, see domestic partnership.

In July 2004, the U.S. state of New Jersey enacted a law that is virtually the same as a typical civil union, giving same-sex couples most of the rights associated with marriage. Although the state government uses the term domestic partnership to denote these new unions, the law in fact gives many more rights than those given by the domestic partnerships of most other jurisdictions, and so the New Jersey situation is more often related to civil unions.

In November 2004, the United Kingdom passed a law using the terminology civil partnership, conferring the legal rights associated with marriage to registered gay couples.

Civil Union in United States

Vermont

The controversial civil unions law enacted in Vermont in 2000 was passed as a response to the Vermont Supreme Court ruling in Baker v. Vermont requiring that the state grant same-sex couples the same rights and privileges accorded to married couples under the law. There are still many people who are strongly opposed to the idea of same-sex marriage, so the legislature came up with the idea of civil unions as a compromise between groups seeking equal rights for homosexuals, and groups objecting to gay marriage.

A Vermont civil union is nearly identical to a legal marriage, as far as the rights and responsibilities for which state law, not federal law, is responsible are concerned. It grants partners next-of-kin rights and other protections that heterosexual married couples also receive. However, despite the "full faith and credit" clause of the United States Constitution, civil unions are generally not recognized outside of the state of Vermont in the absence of specific legislation. Opponents of the law have supported the Defense of Marriage Act and the proposed Federal Marriage Amendment in order to prevent obligatory recognition of same-sex couple in other jurisdictions. This means that many of the advantages of marriage, which fall in the federal jurisdiction (joint federal income tax returns, visas and work permits for the foreign partner of a U.S. citizen, etc), are not extended to the partners of a Vermont civil union. As far as voluntary recognition of the civil union in other jurisdictions is concerned, New York City's Domestic Partnership Law, passed in 2002, recognizes civil unions formalized in other jurisdictions. Germany's international civil law (EGBGB) also accords to Vermont civil unions the same benefits and responsibilities that apply in Vermont, as long as they do not exceed the standard accorded by German law to a German civil union.

The civil union law is hailed by some as a fair compromise to the issues before the legislature. Others are angry that the legislature did not go so far as to legalize marriage between homosexual couples, and still others are angry that the legislature granted homosexual couples something so similar to marriage. It has been a politically charged issue within the state of Vermont, and throughout the United States.

Civil unions can be dissolved in Vermont family court in exactly the same manner as divorce of married couples: as of July 2002, four such unions had been so dissolved. But while there is no residency requirement to contract a civil union, there is a six month residency requirement to dissolve one. The attempt of Glen Rosengarten to obtain, in his home state of Connecticut, a formal dissolution of his Vermont civil union with Peter Downes, then a resident of New York City, was rejected by the court of appeals on the basis of lack of jurisdiction. Though New York City recognizes civil unions contracted in other jurisdictions, it is not clear if dissolutions of civil unions would be similarly recognized. This was the first case of a non-Vermont resident seeking a dissolution of a civil union, and it seems reasonable to anticipate difficulty in other such cases.

Many legal experts maintain that the Federal Marriage Amendment, in the version supported by George W. Bush which failed to pass the U.S. Senate on July 14, 2004, would have outlawed civil unions everywhere in the U.S., even within Vermont. (For a discussion, see the FMA page.)

More about: Divorce

What is Spousal Abuse?

Spousal abuse is the term applied to the specific form of domestic violence, where physical or sexual abuse is perpetuated by one spouse upon another. The term was coined in the late 1970s when such crimes were given wider attention in society. There are separate legalities and punishments applied to such a crime as opposed to random assault or assaults of another nature.

Most reported cases of spousal abuse involve violence by men against women. However, there are a significant minority of cases involving violence by women against men, violence by same-sex partners or where both parties act out violently against one another. Men tend not to report spousal abuse at the same rate as women; partly because they diminish the impact themselves and partly because society, media, police and courts also tend to diminish its impact.

What is Child Abuse?

Child abuse is the physical or psychological mistreatment of a child by his or her parents (including adoptive parents), guardians, or other adults. While this term emphasizes on carrying out wrong acts, a related term is child neglect: not doing what is necessary, negligence. The combined problem area is often called child abuse and neglect. Below the term abuse is used in the generalized meaning which also includes neglect. Child abuse occurs in all classes of society.

Maladjusted psychological need may drive an adult to abuse a child. One thing in common among different types and degrees of abuse is failure to consider a child's long-term interest.

Imposing malnutrition on a child can be a form of abuse depending on severity. For example, causing a child to forfeit breakfast one morning might not be considered child abuse.

Symptoms

Among the symptoms that various professionals sometimes ascribe to and seek as signs of child abuse are:

A. Emotional abuse

* emotional withdrawal/distance

* parental refusal of needed medical care

* premature sexual/romantic promiscuity for girls

* lack of sexual interest (e.g. dating) for boys (with respect to age, cultural, and religious

beliefs)

* shyness

* child seems afraid of parents/care givers

* stunting of mental/emotional growth

* failure to look people in the eye

* temper tantrums/violence

* speech and language difficulties

B. Neglect (Under protection)

* general dirtiness

* general unhealthiness

* lice, fleas and similar parasites

* parental refusal of needed medical care

* stunting of mental/emotional growth

* too thin, not within normal weight range for age and gender

* alcohol/drug abuse by parents/care givers

* Parents/care givers often (but not always) have low education and income

C. Physical abuse

* emotional withdrawal/distance

* over aggressive behavior (especially boys)

* distinctively shaped scars, most especially:

* any second-degree burn associated with stoves, fire or boiling water

* belt buckles

* genital modification and mutilation

* circumference burns without splash burns

* cigarette/cigar burns

* spirals (as in a typical stovetop burner)

* whips (and similar objects)

* temper tantrums/violence

* parental refusal of needed medical care

* child seems afraid of parents/care givers

* bullying of other children

* alcohol abuse by parents/care givers

* Shaken baby syndrome

D. Sexual abuse see also Age of consent

* emotional withdrawal/distance

* injured vagina or anus

* semen in the vagina or anus

* parental refusal of needed medical care

* unusually early preoccupation with sex

E. Isolation and over protection

* emotional withdrawal/distance

* shyness; few, if any, friends

* stunting of mental/emotional growth

* excelling at school in younger years, then gradually doing poorly in the teen years

* failure to look people in the eye

* temper tantrums/anger/violence directed only at parents/care givers (otherwise very

well-behaved)

* speech and language difficulties

* fearful and afraid of new relationships

* lack of sexual interest (e.g. dating) for boys (with respect to age, cultural, and religious

beliefs)

* procrastination as the child becomes older and more independent

* unable to take care of self with respect to age

* being bullied by other children

* child rarely seen in public (except possibly school)

* parents/care givers often (but not always) well educated

* greater risk if family resides in outlying suburban or rural area

More about: Child Support | Child Custody

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