Family Law Introduction
Family law, a crucial branch of legal studies and professional practice, encompasses the body of law that deals with family-related matters and domestic relations. Family law as a term is a common synonym for domestic relations law; however, it also deals with other matters including adoption, surrogacy, legitimacy, and juvenile adjudication.
The scope of family law encompasses a range of issues primarily concerning the breakdown of marriage, domestic partnerships, and civil unions. Issues on divorce proceedings, civil unions, annulment, and marriage dissolution are central to its legal study and practice, including ancillary matters such as property settlement and allocating parental responsibilities, as well as determination of child custody, child support, spousal maintenance (or in some cases, alimony), and visitation rights.
Other areas that fall within the scope of family law include property arrangements and the financial aspects that arise from domestic relationships, including the annulment and divorce processes. Alternate dispute resolution is a common practice within family law, dealing with family-related disputes and all matters that affect day-to-day family and personal life. Issues involving adoption, legitimacy, surrogacy (or assisted reproduction treatments), divorce, domestic violence, property settlements and marital agreements, as well as juvenile adjudications, are also covered within family law studies.
Historically, family law and its development have been closely attached and integrated with various other disciplines. Now it has evolved into a profession that transcends the traditional role of parenthood and care giving. Many governments and social institutions, in modern times, are recognizing a family law degree as the legal basis for protecting the societal importance of family relationships and family institutions, especially within context to time frames of separation and breakdown of families, in an effort to reducing the detrimental effects of these issues .
Family law is not limited by statute, and although there are jurisdictions that have developed considerable codifications, most family-related decisions are made under common law. Family law is found in the statutes (or legislation) of many nations; it addresses domestic relationships and domestic relations.
Family law is a field of a of legal studies that includes matters and issues such as marriage, adoption, surrogacy, legitimacy, domestic partnerships, and divorce. In addition to marriage and divorce, family law covers matters such as legitimacy, surrogacy, domestic partnerships, adoption, child abuse, child abduction, child neglect, domestic violence, juvenile adjudication, guardianship, and paternity testing. Family law, in recent decades, is more often being viewed as an alternative to the criminal justice system, as people expect the civil law and civil courts to provide solutions and answers to domestic and family problems that otherwise might be resolved in the streets.
Family law, however, is mostly considered a field of the law that deals with family-related issues such as marriage, adoption, divorce, and family parenting. Family law provides the legal parameters within which family members co-exist, with duties and obligations between family members and the world outside of the family unit. Family law focuses primarily on the hierarchy of the family, household, or equivalent unit. The family unit, in the twenty-first century, is most commonly referred to as "single-parent families," which consists of only one parent and his or her children.
Family law is a practice area of the law; yet its boundaries are unclear. The ambiguity is attributed to the increasing complexity and changing interpretation of family structures, as the law attempts to address them in conjunction with other legal issues. Family law continues to evolve and change as society changes in terms of understanding’s, beliefs, and views regarding family related issues.
Marriage and Cohabitation
Marriage and domestic partnerships can be the first area of law a family lawyer encounters in a practice. Individuals generally consult a family lawyer prior to making a marriage decision or entering into a domestic partnership.
The first legal aspect of marriage that is important for the family lawyer is whether marriage licenses and the requirements for marriage have been complied with as required by each state. Most states require that a marriage license be obtained from a state official prior to a marriage. Until the license is properly obtained the marriage ceremony is not valid.
Many family lawyers are presented with matters involving pre marital agreements. Pre marital agreements, also known as prenuptial agreements are agreements that are entered into prior to marriage setting forth the rights and obligations of the parties during the marriage and if the marriage should end in divorce. There is no particular form that a premarital agreement must take, but most will contain provisions regarding property divisions as well as termination of alimony at the death of a spouse or in the event of divorce.
From the perspective of family law, the next area that would arise would be the legal recognition of a marriage. Marriage status is not uniform in all states. Some states would recognize a marriage between a same sex couple entered into in a jurisdiction that recognizes the same sex marriage while other states would not recognize such a status.
Since domestic partnerships and common law marriages can also have the full status of marriage, the same legal considerations would apply if the contract is between unmarried individuals.
Separation and Divorce
Divorce and Separation are the most common family law issues that arise. The filing for a Divorce is a Court case that has to be filed in the State where you have lived for the past twelve (12) months. If you have lived in multiple states during the past twelve (12) months, you need to consult with an attorney in that other state to determine whether or not the Court there has jurisdiction to decide your case. A Divorce involves the division of marital assets, liabilities, debts and distributions. The Court also has the ability to decide temporary issues pertaining to custody, parenting time and child support. The time frame for the conclusion of a Divorce case depends upon many factors, most of which are beyond the control of the parties and their attorneys.
The time frame can vary greatly from a few months to a year or more. If there is an agreement between both parties, the case can conclude within six-months. If the case has to proceed through the discovery process, then the time frame dramatically increases since the discovery process typically takes six to eight months to effectively complete. The filing of a Complaint for Divorce begins the formal legal process. The spouse who is initiating the Complaint is known as the Plaintiff and the spouse who is responding to the Complaint for Divorce is known as the Defendant. Once served with the Divorce Complaint, the Defendant has thirty-five (35) days to Answer the Complaint. The Answer can be in the form of a Consent Order or a Request for a Case Management Conference with the Court. In a Consent Order, the Parties are consenting to the terms of the Order and it will be entered as a Judgment of Divorce after a four-month waiting period. A Case Management Conference is an appointment with the Judge to schedule any conferences that may be needed, as well as a trial date.
The Discovery Process, which is the exchange of relevant information, is governed by Rules 4:10 and 4:14 of the New Jersey Rules of Court. These Rules provide guidance as to what type of documents must be provided in the initial stages of a case. At the same time, the Rules have numerous provisions pertaining to depositions and other discovery processes, including interrogatories, requests for production of documents, requests for admissions, etc. Very often the easiest way to obtain information is through the initial document exchange process. The second portion of the discovery process is the oral depositions, which can be extremely expensive. The use of depositions typically comes into play when there are allegations of non-disclosure of information such as stock brokerage accounts, problems with hidden assets, hidden bank accounts, etc. There are three most common Experts used in divorce cases. They are Behavioral Experts, Valuation Experts and Forensic Experts. Typically if there is an issue with regard to custody, a Behavioral Expert will be needed to evaluate the parties and then render an opinion to the Court as to the parenting arrangement that is in the best interests of the children. The second Expert is a Valuation Expert. It is uncommon that a marital asset, such as a business, is extremely valuable and both parties agree upon the value. When it is necessary to heavily litigate a business or real estate asset, it may be necessary to have an expert come in to value the assets. The last expert is the Forensic Expert. The need for this type of expert comes into play when a party is hiding assets from the other party and there is a belief that additional liabilities or assets exist.
Child Custody and Placement
Family law in most jurisdictions includes the basic concepts of child custody and child support. Individual States have differing laws regarding custody and support, although their laws share many similarities.
Custody of a child can be granted to one parent or shared, depending on circumstances. There are several types of custody: physical custody, legal custody, temporary custody, permanent custody, sole custody and joint custody. Physical custody refers to the living circumstances of the child. Legal custody is the responsibility of making decisions for the child regarding education, medical issues, travel, extracurricular activities, etc. Temporary custody is a short-term arrangement for the child until the courts can grant permanent custody in a custody hearing. Permanent custody in a final custody determination. Sole custody means one parent has the authority to make decisions for the child. Joint custody is where the parents make decisions together.
In many jurisdictions, the factors influencing custody decisions by the court can include: stability of parents’ physical residence, the child’s education, connections to family and community, mental and physical health of the parents, the child’s preference, evidence of domestic violence (if any), the relationships parents have with the child and the grandparents of the child, and the financial ability of the parents to raise the child.
There are often changes in custody from permanent custody changes, to supervised visits, to temporary custody and foster care. If a child is placed in foster care, the State assumes authority over the child and the parents must prove they have satisfied requirements to regain custody. Sometimes, adoption can result when parents have lost rights to their child.
In all cases, the courts will set child support amounts and custody. Child support can be a fixed amount based on a child support formula, a specific amount that was agreed upon, or some other calculation. Courts and jurisdictions differ in the manner in which they calculate child support. Typically, child support is based on the number of children, the income of the parents and a formula for calculating child support. Enforcement actions for child support can be brought in court to enforce an existing order.
Adoption and Surrogacy
The legal process of adoption involves judicial approval of the adoption by the biological or foster parents of the child. The rights of biological parents to custody of their child is terminated in order to place the child with a new family.
Adoption is generally classified into either open or closed adoption. In a closed adoption, the identities of the biological parents are kept secret from the adopted child. In many states, however, open adoptions are customary. An open adoption allows contacts between the biological and adoptive parents, while also keeping the identity of the biological parents a secret from the child. Open adoption allows contact between the biological parents and the child, and they both agree on the terms and conditions of the ongoing contact, may it be a letter, phone call, or a visitation.
In an international adoption, the process is basically the same as a domestic adoption. However, given the cross-country nature of the process, it becomes significantly more complicated . It involves a great deal of coordination between both countries. The process is even longer when immigration applications and issues are involved, not to mention the language barriers that may occur.
In a surrogate adoption, a woman who cannot conceive can choose to have a surrogate bear a child for her. The infant has a legal relationship with the surrogate and her husband, unless the surrogate is single. The adoptive mother will then step in after the child is born to adopt the infant. Generally, this process requires governmental permission before conception. The surrogate must meet strict requirements before she is legally allowed to become a surrogate. It is important to note that each state has different laws regarding surrogacy, as some do not recognize surrogacy contracts. Although surrogacy does not automatically terminate the biological mother’s parental rights, in certain cases, it may be necessary for the biological mother to terminate her rights at the time the baby is born.
Domestic Abuse and Protection from Abuse
Domestic violence is a criminal offense that generally comes up in one of two situations. The perpetrator has a criminal past or the person bringing a claim of domestic violence has a criminal history. In either case, the aforementioned situation does not occur in isolation. Outside of the courtroom, there are personal and professional support structures in place for domestic violence victims.
From a personal perspective, the victims often have a support network consisting of friends and family who provide counseling on an individual basis. In some cases, the support network is not sufficient to bring the victim along by themselves. They may require the assistance of an outside professional who is trained to help them cope with their situation through counseling. Some of the professionals who assist with providing support to victims include psychologists, counselors, therapists, psychiatrists and social workers.
On a professional level, the courts are also on alert for domestic violence. When one partner is charged with domestic violence against another, there is a possibility that the victim may need to secure protection from family violence (POFV) through the domestic violence court system in the county of residence. A POFV is a civil order protecting the applicant from the perpetrator, and it bans the perpetrator from contacting the applicant by any means, including telephone, texting, emailing, Twitter, Facebook and other social media. Some of the other protections that may be included with a protection order are:
Parenting Time: Violation of the POFV is a criminal offense that may result in the loss of parenting time for the offending party. Residence: The POFV may temporarily ban the offender from living in the home with the victim. It also suspends the monetary obligations of the offender to pay child support. The Child Protective Services (CPS) also plays a role in the POFV system. If a child was living in the residence at the time of the filing of the POFV, the POFV may terminate parental rights for custody and parenting time.
After domestic violence is filed, the main party goes before the judge. The hearing takes place before the regular court proceedings of criminal court commence. The hearing is based upon the written response of the main party. However, there may be other supporting documents that can help support the request for a protection order. When no prior history has been established, the main party may file a temporary protection order for a fixed duration, such as seven days.
The protection order process varies based on the state where the victim lives. Above all, the victim must prove that they are in fear of the other party and the threat of violence is real and imminent.
Alternative Family Law Issues
As society becomes more accepting and open about non-traditional families, family law practitioners are increasingly faced with legal issues they have never encountered before. In particular, the growing acceptance of same-sex marriage and civil unions has brought to the forefront the question of parental rights and obligations in the LGBTQ+ context. A child may have two mothers, two fathers, several mothers or several fathers. If two married individuals have a child through adoption in a same-sex marriage or civil union, then generally both parties will be on the child’s birth certificate as the parents. What happens, however, in the context of two unmarried partners where only one of the parties is the biological parent of the child? Under the traditional domestic relations statutes, the biological parent would have all parental rights with the other party having limited custodial rights if any custodial rights at all. The other party would have no child support obligations, health care coverage obligations or legal rights of authority over the child. However, some people believe that this is not in the best interest of the child. Under another interpretation, the child is entitled to have the benefit of both parents in his or her life. This is the new wave of child custody litigation in California Courts, and it begs the question of what does the child need and want. Also, can a stranger to the marriage or a friend of the family adopt the child? Would that even satisfy the desires of these individuals?
A similar legal quandary exists in the polyamorous family. Can a married couple take a third party as a spouse and create a three-parent family? Are there four parents, five parents, and even six or seven? Polyamory has been illegal in the United States since the mid-1800s. The first polyamorists were members of a sect of Mormons called the Latter Day Saints (also known as Mormons). What polyamorists are seeking is a recognition of their family as a family, a legalized structure of their unit. When extended to children, the extension is A) the State will recognize your family; and B) third parties should be allowed to adopt and/or be given parental legal rights over the children. For polyamorous families or poly parents, do you have the right to have multiple parents? Can you have multiple adoptions and multiple parental relationships? Does the traditional family law model of parent/child solve this problem? Or, will poly families have to devise their own iteration of parent/child relationship? How do you distribute and manage the welfare of children? How do you distribute parental time, child rearing time, and so forth? There is no clear answer at this time, and many of the issues are still in litigation. After all, polygamy has never been legal in the United States, not even for the Latter Day Saints. So, polyamory, polygamous marriages, and multi-parent families create family law issues that can be litigated and/or settled out of court.
Conclusion on Family Law
A comprehensive family law outline is ultimately a guide for your journey through the extremely complex and interwoven family law system. Much like a road map, simply having a general sense of direction is often not enough to ensure you take the most beneficial path to your desired destination. The rules, exceptions, procedures and terminology discussed above serve as a basic framework from which knowledgeable persons in the area can better understand the basic legal concepts related to divorce , child custody litigation and other family law matters. Even with a foundational knowledge of legal terms and processes, however, you are sure to encounter questions and obstacles along the way. We encourage individuals in need of assistance with family law issues to seek experienced legal counsel for support and guidance.