Family Law

As divorce rates and the incidence of illegitimate children escalated, a strong call was made in the 1990s for family law reform. The Clinton administration pushed through the Family and Medical Leave Act of 1993 to encourage greater responsiveness of family members to family needs. The Violence Against Women Act, passed the following year, addressed domestic violence. As the twentieth century came to a close, the perceived "collapse" of the institution of marriage raised fundamental issues. Many believed family law should establish society's expectations about the commitments of family members and more clearly define the boundaries of family. Increased regulation of family life was demanded with increased moral commitments imposed. Proposals were made to increasingly treat the family as a legal entity, rather than just a collection of individuals, subject to social responsibilities. Some claimed that family law became inappropriately "constitutionalized." Individual rights in the Bill of Rights, designed to protect individual liberties from government action, were over expanded to interpersonal disputes.

In 1996, the Commission on Child and Family Welfare submitted a report to Congress entitled, "Parenting Our Children: In the Best Interest of the Nation." The commission found that over one-fourth of children in the United States lived with only one parent and often lacked adequate nurturing and financial support. The report focused on getting both divorced parents actively involved in their children's lives. The commission emphasized that parents' primary concern, regardless of marital status, should be for the well-being of their children. The report identified ways in which courts could reduce the adversarial nature of custody hearings, including mandatory mediation to resolve disputes and development of parenting plans. It also found that courts with family law jurisdiction frequently had the least resources as well as lower legal status than other courts.

The Uniform Parentage Act, adopted by many states, established court procedures and standards for determining paternity of children when paternity is contested. However, the image of the family is radically changing in several ways at the conclusion of the twentieth century. Consequently, family law is being challenged to regulate unprecedented situations. No longer are cases strictly between family members. With artificial reproduction methods, questions arise concerning who the "real" parents are. For instance, does a surrogate mother with no biological relationship to the child she gives birth to have rights to him or her? What are the rights and responsibilities of an ex-husband when his ex-wife wishes to implant the frozen eggs that he fertilized during their marriage? The question arises as to whether these relationships should be addressed through contract and property law as the court resorted to in Kass v. Kass (1998). Family law was clearly entering uncharted territory as the twenty-first century approached.