Family Law and Nonmarital Families

Abstract

Despite the sharp increase in nonmarital childbearing, family law still places marriage at the very foundation of the legal regulation of families. Family law's doctrine draws clear distinctions between married and unmarried couples, which then carries over to the treatment of children. Family law's legal institutions created to oversee the family, particularly upon divorce, are designed for married families that have been formally recognized by the state. And traditional gender norms still inform much of family law's approach to legal regulation, particularly in the conception of legal fatherhood. After establishing that this “marital family law” undermines relationships in nonmarital families, this article proposes reforms to integrate nonmarital families into family law. Identifies legal distinctions between marital and nonmarital families Demonstrates how family law harms nonmarital families Provides a blueprint for reform

Visitation Orders, Family Courts, and Fragile Families

“…Visitation orders often came out of the process of setting up a custody order. Most states do not automatically recognize either an unmarried mother or father as the custodial parent, creating some legal ambiguity about the custody status of children born outside of marriage (Huntington, ). Both mothers and fathers suggested that custody questions needed to be clarified in certain situations when parents had not formalized their relationships.…”

“…The fathers more often said they pursued parenting time when they were having problems seeing their children, to prevent the mother from moving away with the child, or in response to a new child support action. The marital presumption in family law automatically grants paternal rights to men who are married to the child's mother, but unmarried fathers who do not sign a paternity affidavit are required to take additional steps in court to establish their legal paternity (Huntington, ). In New York, fathers typically fill out an Acknowledgement of Paternity at the hospital when this child is born, but can also do this at the child support agency or local birth registrar.…”

“…In most states and local jurisdictions in the United States, Huntington () observed that unmarried parents have limited options for setting up parenting time orders and connecting with supportive services without going to family court. To help unmarried parents transition to a coparenting relationship postseparation, she and other legal scholars have called for more effective institutions that go beyond a court‐based system.…”

“…As more unmarried parents enter the family court system after they separate, legal scholars and professionals have called attention to the new challenges faced by family courts in addressing their needs (Insabella, Williams, & Pruett, ). Experts observe that the legal institutions designed to dissolve marriage are misaligned with the realities of many unmarried parents who lack the knowledge and financial resources to navigate the family court process (Huntington, ). Unmarried parents also have more complex legal situations than divorcing couples, but fewer of the legal protections associated with marriage (Insabella et al, ).…”