The Times They Are A’Changing: The “American Family” and Family Law

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Abstract

In response to substantial changes in the nature of families in the United States, courts have been reshaped and laws have been reconsidered and, in many cases, changed. These reflect the needs and practices of older, and often remarried, adults, changing mores with regard to dating, marital and sexual behavior, reconsideration of traditional gender roles, and more inclusive definitions of “family.”

Key Words: Family law, marriage, prenuptial agreements, divorce, remarriage, support, maintenance, foster care

1. Robert L. Lee, Ph.D., is an Associate Professor in the doctoral marital and family therapy specialization, Department of Family and Child Ecology, Michigan State University, East Lansing, MI 48824. Contact Dr. Lee at 107 Human Ecology, East Lansing, MI 48824-1030, email: [email protected].

2. Charlotte Jones Smith, J. D., is with the Office of the Children’s Ombudsman, State of Michigan.

The State of the American Family at the Cusp of the Millennium[3]

The number of households in the United States continues to increase. Forty-four million were reported in the 1950s; currently there are 100 million. However, the households of the 1950s and the households of the 1990s are quite dissimilar. At mid-century, 70 percent of the households in the United States were comprised of a man who was the breadwinner, a wife who was a homemaker, and three children. Now, such a family constitutes less than 15 percent of America’s households.

The majority of married women work outside of the home, there is a substantial population of single parent and single adult households, cohabitation is increasingly common, and there has been a steady increase of children in foster care, on the one hand, and a desire for adoption, on the other. Corresponding to these substantial changes in the American family have been changes in the practice of family law.

Structure, Size, and Division of Labor

In the past 30 years, intact two-parent households have grown smaller and both adults increasingly work outside the home. The birth rate has been in gradual decline (from an average of three children per household in 1960 to two children currently), and 61 percent of all married women are in the labor force. However, even in dual-wage families, women still do most of the child care (Hochschild, 1997), and men make more money than women in comparable lines of work (U. S. Bureau of Labor Statistics, 1992).

Single adult households are increasingly common. There has been a decline in the marriage rate since the 1970s, a continued high frequency of divorce, and a declining rate of remarriage. Currently, 40 percent of all women between 15 and 45 years of age are unmarried, as well as 38 percent of all men. Indeed, in 1996, 10 percent of all households were single-parent households: mother and children, 8 percent; father and children, 2 percent. A high percentage of these parents work outside the home: 61 percent of those who have had children but never married (primarily women), and 77 percent of the separated, divorced and widowed who have children in the home. A quarter of America’s children live with only one parent. There are 12 million such children, and 90 percent live with their mothers (Arendell, 1990). More than a third of all children will spend all or part of their youthful years in a mother-only household (U. S. Bureau of the Census, 1992; Smith, 1999).

With so many parents in the work force, who is taking care of their children? There seems to be a lack of extended families to provide support at the same time that the business community wants more work from fewer individuals who work harder and smarter (Downs, Costin, & McFadden, 1996). Accordingly, organized day care centers (including preschools and nurseries) currently provide care for 30 percent of the nation’s children, nonrelatives (e.g., women in the neighborhood) look after 21 percent, grandparents look after 17 percent, fathers care for 16 percent, and 6 percent of the mothers take their children to work. It also is important to point out that 11 percent of a national sample of grandparents reported that they had primary responsibility for their grandchildren (Center of Demography and Ecology, 1994).

Cohabitation remains an alternative path to marriage. In 1995, 7 percent of all women between 15 and 44 years of age were cohabiting and over half of those currently living together did not think that they would eventually get married. In fact, in another study (Center for Demography and Ecology, 1994) over 40 percent of the women surveyed reported that they had cohabited at some time in their lives, most before their first marriage. Adult children are increasingly returning to the parental home due to job insecurity, divorce, and the high cost of housing (Howe & Strauss, 1992).

Divorce

The divorce rate, having increased since the 1950s, is now stable, and perhaps declining. However, 38 percent of marriages terminate in the first four years, which increases the probability that very young children will be involved in custody settlements and disputes (Acock & Demo, 1991). The next peak is after substantial years of marriage. In fact, although the divorce rate has leveled off for younger women, in the past decade there is evidence that it continues to grow for women over 50 years of age (Uhlenberg, Cooney, & Boyd, 1990). In such cases, there is little likelihood of child support but there may be significant marital assets — or debt. The importance of marital assets and debt to be settled is magnified by the fact that only 48 percent of separated, divorced, and widowed women are in the work force. Moreover, a homemaker who joins the work force upon divorce finds herself at substantial disadvantage (Gass & Lee, 1996) from which it is unlikely that she will recover (Treiman, 1985).

Most adults begin dating within a few months after the physical separation. Twenty-one percent start dating within a month of the one party moving out, and 50 percent begin dating within six months. Sexual behavior has become less discrete and inhibited, with adults and children exposed to a wide array of media indicating that sexual activity begins early in or in the absence of a dating relationship. Children are no longer unaware of their parents’ sexuality. In fact, 25 percent of current stepfamilies are actually children with cohabiting couples (Bumpass, Raley, & Sweet, 1995).

Five out of six men, and three out of four women will remarry (U. S. Bureau of the Census, 1992; Smith, 1999). Since about 65 percent of remarriages involve children from the prior marriage, stepfamilies are common. Indeed, of all children under 18, 10 percent live with the biological mother and a stepfather, 1 percent live with a biological father and a stepmother, and 10 percent live in a combined stepmother/stepfather household. One estimate is that one out of three Americans currently is a stepparent, stepchild, stepsibling, or some other member of a step family (Larson, 1992).

There may be an increase in the number of families in which one or more of the parents are lesbian or gay. One agency estimates that between three and eight million gay parents in the United States were raising between 6 and 14 million children (National Museum, Archive of Lesbian & Gay History, 1996).

However, a focus on stepfamilies overlooks the fact that women over 40 are less likely to remarry (Uhlenberg, et al., 1990), and that women in general do not fare well financially after divorce. Their plight needs to be seen in the context of an employment picture characterized by a decline in manufacturing jobs, growth of jobs in the service industry, and the need for more specialized skills and knowledge. Moreover, the fastest growing segment of the labor market has been part time and temporary employment (Ahlberg & DeVita, 1992) and, despite the huge presence of women in the work place, gender segregation and disproportionate wages has not changed (Baron & Bielby, 1985; Sidel, 1990; Treiman, 1985). In addition, women who join the work force later than men have very different types of jobs, less upward mobility over the course of their working lives, and earn a great deal less than men (Treiman, 1985). Consider, then, the disadvantage and anxieties of a single-parent female who must find day care for her children and significant employment for herself. This may be compounded in the case of mid-life divorcees who, like their married counterparts, play a large role in the care of 3.3 million grandchildren and provide 70 percent of the care of their own aging parents (American Association of Retired People, 1995).

Exacerbated by the tendency of men not to provide for their families as stipulated in divorce agreements (Buehler, 1989), 75 percent of women with custody of their children, and who remain unmarried for five years, find themselves in poverty (Duncan & Hoffman, 1985). In fact, the plight of female-headed households and newly-divorced women led Pierce early on (1978) to talk about “the feminization of poverty.”

Adoption

Later marriages in some cases have resulted in difficulties with fertility. This may be associated with an increasing interest in adoption. About 10 percent of women in the childbearing ages have difficulty getting pregnant and about 1 percent of all women in that age range are seeking to adopt a child. In the absence of national data collection, the estimate is that 125,000 children are being adopted annually (Child Welfare League of America, 1999). About 10 percent of these adoptions are international and a full 50 percent are children with “special needs,” that is, foster children, the developmentally disabled, racially mixed children, older children, and sibling groups (Lee, 1993). This is because in the past 30 years community agencies no longer are solely trying to find babies for primarily young and infertile couples. The new emphasis is on finding permanent families for foster children (Wilkinson, 1993). The number of children in foster care has increased over 60 percent in the past 10 years to the current figure of about 500,000. Twenty percent of these children will not be returned to their biological parents and will need permanent homes (Child Welfare League of America, 1999). Moreover, although there has been an increase in the frequency of single parent adoptions in all categories, with regard to special needs children in some locales this approximates 40 percent of all such adoptions (Michigan Federation of Private Child and Family Agencies, 1998).

Corresponding Changes in Family Law

In response to these considerable changes in the American family, state legislatures, attorneys, and regional courts have risen to the occasion in numerous areas. The courts themselves have been reshaped. Attorneys are addressing the needs of the aging population. Legal counseling and the implementation of laws regarding marriage and divorce are very different from what they were a few decades ago. As part of this, legislators, special interest groups, and officers of the court are seeking to broaden the recognition of caregivers, to include not only birth parents, but also foster parents, relatives, and family friends. At issue is who has legal standing and an opportunity to voice opinions as to the best interests of the children involved. Finally, the foster care system has been reshaped in many states, with Michigan being an excellent example of legislative initiatives.

Re-Engineering the Court System

In an effort to consolidate and lessen the burden on the court system, some states have created a court that specializes in family issues within the larger regional court. In Michigan, for example, a new Family Division of Circuit Court was created in 1998 so that only one judge in one court would hear all divorce, custody, child abuse, neglect, and delinquency cases involving a family. This was meant to provide family expertise, continuity of care, and congruency of court orders.

In addition, because of its geographical mobility, the American family has come to the attention of the National Conference of Commissioners on Uniform State Laws. There has been a movement toward standardization of family law across the various states. With regard to divorce, proposals have been made for uniform statutes, interpretive definitions, and procedures involving child visitation, child custody jurisdiction and enforcement, and child support. There also has been substantial work done to produce uniform adoption laws and procedures.

Meeting Some of the Legal Needs of an Older Population

With the aging of the population, and an increase in older couples, as well as remarried couples, financial and estate planning have become more prominent in the practice of family law. (See, for example, Ternes, 1999.) Things now considered by aging individuals and aging couples — and their attorneys — are such things as medical coverage beyond Medicare, nursing home insurance, and the handling of social security and other pension benefits. In addition, remarriage brings interesting undercurrents to such issues as durable powers of attorney and estate planning. For example, with durable powers of attorney, the spouse usually is the first named agent. But, because now there often are two or more families who have been blended, alternate choices become difficult. Often the spouses will have different agents, each preferring a natural child from an earlier marriage to a stepchild (Ternes, 1999). Moreover, when it comes to medical powers of attorney, children may resent someone other than the original spouse making life or death decisions for their parent. Finally, a major problem in remarriage, especially later in life, is each spouse’s children. The various children may disagree over responsibility for and choice of care of elderly, incapacitated couples or the surviving member. Their parents, in turn, may struggle with the issue of inheritance rights; that is, how to take adequate care of the surviving spouse while having an intact estate go to the children of the deceased.

Bringing A More Practical Eye To Marriage

In response to higher divorce rates, legislatures in almost all 50 states currently are considering what is required to adequately prepare individuals for marriage, whether or not to make some requirements in this regard, and even if it is advisable to offer options with regard to the marital contract itself (Couch, 2000). “Covenant marriage” is a term being applied to current considerations that typically require religious or secular counseling prior to marriage, and a waiting period and counseling before divorce.

Also in response to higher divorce rates, the number of marriages and remarriages involving older, propertied individuals, and the interests of their children, there is a growing list of states recognizing the validity of prenuptial contracts (Morganroth, 1999). These agreements spell out the financial obligations each party will pay or receive during the marriage as well as define what each party will retain if the marriage is terminated by death or divorce. In contrast to past views of these agreements as inherently conducive to divorce and as allowing a husband to circumvent his legal duty to support his wife (e.g., Scherer v Scherer, 1982), such agreements now are thought to “encourage rather than discourage marriage” (Gant v Gant, 1985).

Meeting the Needs of Families in Divorce

New ways of working with divorced families have emerged, stemming from an increase of concern for the welfare of the children involved. Because divorced parents are bound to one another for life through their children, attorneys and mental health professionals are coordinating services in an effort to assist divorced families in dealing with the inevitable conflicts that arise. Divorce mediation is a growing area in which the soon-to-be-divorced couple agrees to resolve disagreements surrounding property settlement, spousal support, and post-judgement issues with the assistance of a mediator. The goal is to create an amicable, non-adversarial agreement with the result being a mutually agreed upon divorce document. The mediator guides and encourages the couple toward a settlement short of going to trial where the opportunity for a less than desirable outcome is much greater. Arbitration is another growing area in which the parties agree to have a neutral party resolve contested issues which become binding on the parties. Finally, may courts have developed support programs designed to provide estranged parents with the tools necessary to peacefully coexist and resolve problems regarding their children.

Now that fault is no longer an argument for divorce in many states, custody decisions currently are made by comparing the parents’ ability to ensure the best interests of the children, for example, “the love, affection, and other emotional ties existing between the parties involved and the child,” “the length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity,” and “the moral fitness of the parties involved.” Which of these criteria carry the most weight depends on the individual judge and the circumstances of an individual case. No summary data are kept about such matters. However, both with regard to temporary predivorce arrangements and final custody decisions, less traditional morality seems to be influencing the court. Attorneys no longer forbid separated parents to date other people and judges often do not seem overly impressed by incidents of pre divorce sexuality or the presence of paramours.

Despite the apparent neutrality of the best interest of the child criteria, in the past the strongest determinant of who would receive custody of the children upon divorce was gender. Strong legal presumptions (“the tender age presumption”) and traditions favored the mother as the custodial parent, especially when the children are younger (Clarke, 1991). Some states attempted to reduce the uncertainty of the best interests standard by adopting language which favored the primary caretaker of the child during marriage. However, both of these standards are difficult to apply in an American family where both parents are in the outside work force and, before and after divorce, day care will be a central part of the children’s life. Consequently, more and more fathers have been requesting and obtaining custody of their children. Across the many states between 10 percent and 15 percent of divorced fathers receive physical custody of their children (Clarke, 1991). However, this figure is misleading in that it averages contested and uncontested cases. Fifty percent of the fathers who fight for custody, eventually win it (Bartlett & Harris, 1998). Gender orientation of the proposed custodial parent is still a controversial issue.

Probably the one area that has changed the most, in response to changes in the American family, is the whole issue of spousal support or “alimony.” Permanent maintenance (alimony) is disappearing. Of the 20.6 million ever-divorced or currently separated women in 1990, only 15.5 percent were awarded alimony payments. This has been the pattern since 1980. Women 40 years of age and older are about twice as likely to be awarded alimony as women who are younger. The number of men receiving alimony is negligible. Of all the women awarded alimony as of 1990, nearly 90 percent were Caucasian, 75 percent were over the age of 40, and nearly 75 percent were women with no children present in the home.

With a shift from fault to no-fault divorce (around 1970), there has been a shift in how alimony is considered. Specifically, the emphasis in alimony no longer is a concern with “standard of living,” and instead the issue has become “ability to be self-supporting” (e.g., Baer, 1991). Spousal support is not compatible with the emerging societal view that perceives women separately from their husbands and expects them to be economically productive in pursuit of their own businesses and careers (Arendell, 1990). The court, like society, now tends to view wives as people who have become, or who should have become, self-sufficient. At the very least, the emphasis in alimony has shifted away from economic symmetry and maintenance of a pre-divorce standard of living to the expectation that women will become economically independent and have the ability to care for themselves after a sufficient length of time (Gass & Lee, 1996). Accordingly there has been a shift to temporary alimony, intended to support training to self-sufficiency. This change in how society and the courts view women has been unfortunate for many and catastrophic for some. A 75 percent decline in the economic status of the former wife is not uncommon (Weitzman, 1985) because of the lack of maintenance awarded for herself and the tendency of ex-husbands not to fulfill alimony and child support agreements.

Broadening the Roster of Potential Parenting Figures

As society continues to contemplate “the best interests of children,” civil suits have questioned who their primary caretakers should be. Some foster parents seeking to adopt the children placed in their care have argued that creation of a child does not necessarily make someone a good parent. “Psychological parents” are the ones who should have custody of a child. Of late, when biological parents are either incapable or unwilling to care for them, grandparents, stepparents, other relatives, close friends, and foster parents all have petitioned the courts to be granted legal standing with regard to the children in question. Grandparents also have been active in seeking visitation rights with grandchildren upon the divorce of their parents (Victor, 1992).

Another development that has occurred in recent years is the fact more that gay and lesbian couples are becoming parents. In small but growing numbers across the country, gay and lesbian couples are adopting children and are conceiving children through in-vitro fertilization. In addition, although the many states typically do not offer marriage to gay and lesbian couples, there are increasing numbers of gay and lesbian couples serving as foster parents to abused and neglected children.

Providing Safe and Permanent Homes for Children Who Need Them

Because of the large number of children languishing in foster care (Lee & Lynch, 1998), and the potential availability of families to adopt them, child welfare laws and practices have shifted to be at once more inviting and facilitative. The State of Michigan provides an example.

Under the leadership of former Lieutenant Governor Connie Binsfeld a package of laws was enacted that, in 1998, made sweeping changes in the probate code, child protection law, adoption code, and in many of the policies and procedures of the state department of social services. The state recognized the rights of a putative father to file a motion for custody of a child born out of wedlock. Foster children were given a court-appointed attorney whose duty was to represent the child’s wishes in abuse and neglect proceedings. Foster parents gained an increased role in providing the court with information about children in their care, the authority to appeal a decision by an agency to remove a child from their home, and the possibility of adopting a child placed in their care.

Concurrent with this, in keeping with the contemporary trend to broaden the definition of family, the state added living together partners to those who could be held responsible for abusing or neglecting a child. If abuse or neglect on the part of such a person be substantiated, that person would be placed on the state’s central registry of child abuse and neglect offenders and, if necessary to protect children, could be ordered from the home.

Finally, in an effort to speed up the process of getting foster children into permanent homes, the state clarified what would constitute reasonable efforts by birth parents to obtain the return of their children, set a limit on the time that this could take, mandated planning for the possibility of adoption concurrent with planning for a possible return to the birth parents, and created financial incentives for timely placement of children into adoptive homes.

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[Notes]

3. For ease of presentation and reading, all data not otherwise referenced in this report are taken from the U.S. Bureau of the Census. The data also do not reflect cultural variations. These may be found in Smith (1999).