What is Considered Family Law?
Family law refers to the body of law that addresses familial relations such as adoption, divorce, marriage, property settlements, child custody, guardianship and foster care. It is typically separated into two categories: domestic relations and family relations. Domestic relations include the legal regulation of marriage, divorce, prenuptial agreements, annulments, spousal support, separation agreements and all issues pertaining to children . Family relations are legal matters that arise from the domestic relations category that includes custodial consent, child protection, race relations, labor, welfare and school law. Family law is one of the most important sectors of the broader legal system. There may be no other area of law that more directly affects personal lives than the issues related to family law and domestic relations. There may be no other legal process that is as overwhelming and challenging as fighting for child custody alone in court.
Marriage & Civil Partnerships
Family Law focuses on many different areas and applies to individual situations, from Marriage and Civil Unions to parentage and adoption, termination of parent-child relationships, child support and spousal maintenance, and property distribution, maintenance enforcement, powers of attorney (POA), and more.
Family Law governs the legal recognition of Marriage and Civil Unions. Family Law matters include issues that pertain to Marriage or Civil Unions including prenup agreements, marriage licenses, domestic partnership and civil union agreements, and same-sex marriage. Family Law includes all recognition of the rights within a Marriage, also known as a Civil Union. Similar to Marriage, a Civil Union establishes rights and duties between partners. Unlike a Domestic Partnership, that does not provide all the privileges and benefits of Marriage in every State, a Civil Union is a recognized form of Marriage for legal purposes in some States. In other places, it is regarded as a Domestic Partnership. Marriage may create a legal parent-child relationship, as well as establishing a partner’s duty to support both the child and the spouse or common-law partner. The moral, financial, and legal obligations may last for a specific duration or be permanent. Common law partner recognition of a Marriage are awarded to those individuals who have presented themselves to the public in the state as if they were a single unit. This means: At least 1 party must have intended to make a permanent commitment The partners must have cohabited in a common household The partners must have held themselves out to the public as being a married couple Without any federal protections, same-sex couples often have limited access to issues of Marriage and Civil Unions. Common challenges include limited health benefits, spouse visitation rights in hospitals, and rights to adopt.
Divorce & Separation
Divorce is the legal dissolution of a marriage by a court or similar authority. The term divorce encompasses other legally valid dissolutions of marriage. Legal separation is one such dissolution. Once a court has given a divorce decree, there is no formal relationship between the parties that can be regulated by law. Usually the only way out of a marriage is through a divorce decree. This decree prohibits either person from remarrying someone else, but does not prevent either from entering into a new cohabitation. However, a new relationship will affect support issues related to the prior marriage in states where that criterion is followed. A divorce decree is the only legally valid document that can affect property rights of people. A decree of legal separation allows a married couple to live apart without terminating the marriage. At least one of the parties to the marriage must usually apply to the court for a legal separation. A legal separation has some of the same features of a divorce but it is not a dissolution of the marriage and legal documents are not public records. A person who is legally separated is free to marry another person but a third party could be held liable for alienation of affections should the separation end in divorce.
Child Custody & Visitation
An important area of focus is on child custody arrangements and visitation rights. Whether or not they are married, parents have legal responsibility to care for and nurture their children. In the event of a divorce or separation, parents will be forced to consider how their children will be cared for. Parents may be legally required to pay child support, or simply agree to visitation standards. Family and Divorce Law addresses all of these facets in details.
Divorce law looks at all aspects of the care of children, including custody. For divorced or separated parents, the courts base custody on what is in the best interests of the child. Aspects of a child’s life that a court will consider when determining custody include: Courts will always look at what is deemed to be in the best interest of the child. The court will weigh each of these factors equally and will make a decision as to custody based on the information provided to them. Although divorce law looks at the best interests of the child, the courts may still award one parent most, if not all, of the parenting rights. Visitation could be limited to a few hours every other weekend or supervised by a guardian ad litem. A parent may be denied visitation rights altogether if it is not in the best interests of the child.
Child & Spousal Support
Child and spousal support refers to the financial obligations of one spouse to another following the end of their marriage. Spousal support (also known as alimony) is typically calculated based on several factors, including one spouse’s income, what he or she can reasonably afford to pay or receive, how much time it will take for that spouse to be self-sufficient after the divorce, how much alimony is necessary to support the other spouse in the lifestyle they have enjoyed as a result of the marital estate, among other considerations.
After calculating a fair amount of spousal support (or fixed alimony support over a period of months or years), the government can then enforce that spousal support , including garnishment of wages if the supporting spouse fails to pay amounts due.
Child support is calculated in a similar fashion. However, the child support formula is based entirely on state-child-support laws, such as the Texas Family Code section on Child Support Guidelines. The formula is designed to ensure that a child (or children) of a divorce is able to maintain the same lifestyle while with the custodial parent (the one who has the primary custody of the children) as he or she would have enjoyed but for the divorce. The non-custodial parent is then required to pay this amount as child support, also subject to enforcement by the government.
Adoption & Surrogacy
Both adoption and surrogacy are areas of family law that require special consideration as they differ from traditional family law matters. In adoption, a new parent assumes the legal rights and responsibilities for the adopted child. A birth father who signed parental consent and/or a court finding of paternity will retain parental rights, unless the birth father withdraws his consent or the court overturns its finding of paternity.
The agency overseeing the adoption will complete a home study and evaluate the prospective adoptive parents. The prospective adoptive parents must have the financial means to care for the child and where necessary, receive counseling.
An adopted child has the same rights as a biological child. Adoptions may be open or closed.
Surrogacy involves a person (the surrogate) becoming pregnant through assisted reproduction technologies, which may or may not include the fertilization of one of the couples’ eggs or the use of a residential donor, to have a child for another person or couple that cannot or choose not to have children on their own. The prospective surrogate must also undergo a home study and evaluation by the agency responsible for overseeing the surrogacy process.
The surrogate must have sufficient means to care for herself throughout the pregnancy. The surrogate gives up all of her claims to the child to the intended parent at birth (or thereafter, in the case of an adoption). A surrogate can potentially retain all legal and physical rights to the child up to birth if she is "matched" to the couple over 180 days before the birth of the child. In New York State, surrogacy agreements are not strictly enforceable, but the surrogate may recover out-of-pocket expenses related to the surrogate’s pregnancy and post-delivery expenses, including fee payments, housing, clothing, and food.
Domestic Violence & Post Order
Family law plays a vital role in safeguarding the fundamental right of individuals to live free from fear of violence, coercion or threats. Regardless of whether or not there are ongoing family law matters, if there is an established pattern of domestic violence – there may be civil and criminal law implications. In the context of family law, domestic violence is any form of conduct that puts an individual at risk of physical, psychological or emotional harm. This includes assault, harassment, unwanted touching, threats, intimidation, forceful confinement and family violence against children. Family law courts handle domestic violence matters through specific pieces of legislation; in keeping with the paradigm of custom and statutory law, the main laws that inform the family law courts are the Family Relations Act (FRA) and the Domestic Relations Act (DRA). The DRA governs the grounds for obtaining and enforcement of protection orders and the FRA governs the determination and enforcement of visitation rights. A protection order is an order made by the court prohibiting a person from communicating or having contact with another person. In cases where the fear of physical danger is present, a protection order can allow for a change in the living arrangements of the parties involved. Child protection services may also be involved in cases of child protection under the Children and Family Services Act or the Youth Criminal Justice Act may step in to authorize a youth under the age of 18 years into remand.
Elder Law & Guardianship
Family law also covers elder law issues such as guardianship. It is the way the law provides for the protection and care of elderly individuals through legal mechanisms. For example, when an older person can no longer make good decisions about their care or finances, they may need to have a family member or other trusted individual appointed as their guardian. At some point or another, we are all going to have to deal with the issue of aging and its impact on us or on our loved ones and family law will help you to do it .
Oftentimes, family members step up to the plate and help out with the care of those who are older in age, but in some cases it becomes necessary to have a legal guardian appointed to oversee all the needs of one of those who can no longer manage their affairs properly. This is not an action taken lightly and there will be a thorough investigation of the elder to determine that they are in fact no longer able to manage their own affairs before a court will assign guardianship.