Family Law

Family law has grown beyond the boundaries of marriage, divorce, and child custody and support. New areas of law have been created that deal with the legal rights of persons who have not been legally married.

Palimony The colloquial term palimony entered the U.S. lexicon in 1976, with the lawsuit Marvin v. Marvin, 18 Cal.3d 660, 134 Cal. Rptr. 815, 557 P.2d 106 (Cal.). The term refers to alimony paid out of a nonmarital union. In Marvin, the California Supreme Court ruled that although public policy is to encourage and foster the institution of marriage, an equitable distribution of property accumulated during a nonmarital relationship is not precluded. In this case, Michelle Triola Marvin, who had cohabited with film actor Lee Marvin for seven years without a formal marriage, brought an action to enforce an oral contract under which she was entitled to half the property accumulated during the seven-year period, along with support payments. Though the facts of the case ultimately led to Michelle Marvin's not recovering any palimony, the case established the right of a cohabitant to obtain a PROPERTY SETTLEMENT.

Same-Sex Marriage Despite court challenges, marriage can occur only between persons of the opposite sex. In Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185 (1971), cert. denied, 409 U.S. 810, 93 S. Ct. 37, 34 L. Ed. 2d 65 (1972), the Minnesota Supreme Court sustained a clerk's denial of a marriage license to a homosexual couple.

The possibility of homosexual marriage was revived by the 1993 decision of the Hawaii Supreme Court in Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44. In Baehr, the court held that a state law restricting legal marriage to parties of the opposite sex establishes a sex-based classification, which is subject to strict constitutional scrutiny when challenged on EQUAL PROTECTION grounds. Although the court did not recognize a constitutional right to same-sex marriage, it indicated that if the state prohibited such marriages, it would have a difficult time proving that gay and lesbian couples were not being denied equal protection of the laws. The debate over homosexual marriage continues at both the federal and state levels.

Although gay and lesbian partners have been unable to persuade states to recognize their unions as "marriage" in the traditional sense, an increasing number of states have passed laws allowing unmarried couples, including homosexual and heterosexual couples, to register as "domestic partners." A registry identifying these partners has been established in dozens of American cities, and other cities and states now extend certain benefits to domestic partners even if the city or state does not provide a registry. The ordinances and statutes also provide certain procedures for property settlement and resolution of other issues if the partners separate.

The movement has been most popular in cities in the state of California, where many municipalities and counties provide benefits to domestic partners, domestic partner registries, or both. Although several of the cities across the United States that have extended these rights to same-sex couples are larger, urban areas, some smaller counties and cities have also extended such rights.

Artificial Conception and Surrogate Motherhood Modern technology has created opportunities for conceiving children through ARTIFICIAL INSEMINATION, in vitro fertilization, and embryo transplantation. Combined with these techniques is the practice of SURROGATE MOTHERHOOD. These new techniques have also created legal questions and disputes new to family law.

The most important legal question goes to the child's status, which encompasses the child's rights against, and claims on, the various actors in the child-bearing scenario. These actors might include one or more of the following: (1) the married mother's husband when the child was conceived by artificial insemination with semen donated by a third party; (2) a surrogate mother who carried the child to term and gave birth to the child, where the pregnancy resulted from either (a) her artificial insemination or (b) her receipt of a fertilized ovum (embryo) from another woman; (3) the donor of the semen; and (4) the donor of the ovum or embryo.

Artificial insemination Where a married woman, with the consent of her husband, has conceived a child by artificial insemination from a donor other than her husband, the law will recognize the child as the husband's legitimate child.

In vitro fertilization and ovum transplantation The technique of in vitro fertilization gained international attention with the birth of Louise Brown in England in 1978. This technique involves the fertilization of the ovum outside the womb. Where the ovum is donated by another woman, the birth mother will be treated in law as the legitimate mother of the child.

Surrogate motherhood In surrogate motherhood, women agree to be artificially inseminated or to have a fertilized ovum inserted into their uterus, and to carry the child to term for another party. Where women do this to assist members of their own family, few legal complications arise. However, where women have agreed to the procedure for financial compensation, controversy has followed.

The most famous case involved "Baby M" (IN RE BABY M, 109 N.J. 396, 537 A.2d 1227[1988]). In 1987, Mary Beth Whitehead agreed to be the surrogate mother for sperm-donor William Stern. Stern agreed to pay Whitehead $10,000 for carrying the child. Whitehead signed the contract agreeing to turn the child over to Stern and his wife, Elizabeth Stern. Whitehead began to show attachment to the child when she was born, naming the child Sara Elizabeth Whitehead at the hospital. The Sterns, on the other hand, had prepared to take custody of the child, naming her Melissa. When Whitehead refused to turn over the baby, Stern went to court seeking custody of the girl.

The New Jersey Supreme Court held that the surrogate contract was against public policy and that the right of procreation did not entitle Stern and his wife to custody of the child. Nevertheless, based on the best interests of the child, the court awarded custody to the Sterns and granted Whitehead visitation rights.