Family Law Outline
Professor Barbara Babb
Fall 2004
I. Introduction/Definition of Family
A. Objectives for the course
1. I/d issues in family law
2. Become familiar with doctrinal legal theories
3. Provide an analytical framework
4. Incorporation of social sciences–What do families look like?
5. Policy goals to address family issues
6. Increase sensitivity to diversity in family law
B. John Demos, Images of the American Family, Then and Now (pages 102-09)
1. Three historical periods of the family
a. Family as community
(i) Family and outer community are joined in profound reciprocity; they are almost continuous; individual families are the building blocks to community
(ii) Normally, focused on a nuclear unit; although outside entities (orphans, laborers) often added to the mix and the married parties became in loco parentis
(iii) Seen as a little church or commonwealth
(iv) Taken for granted
b. Family as a Refuge
(i) Bunker imagery; man would retreat here to be refreshed from the threats of the outside world
(ii) Became a machine with highly calibrated, interlocking parts
A. Man was the bread-winner and the representative
B. Women was to maintain the perfect home-full of tranquility cheerfulness, purity
C. Children entering adulthood followed a disjointed and problematic path–no longer was the maturation seamless. Transition into adulthood was longer, lonelier, and more painful. Leaving home was treated with extraordinary tension.
(iii) “Tightly closed circle of interlocking parts.”
(iv) Thought about in highly self-conscious ways, written about, and worried about
(v) Near reverse from earlier period
c. Family as Encounter Group
(i) The family is a vehicle to replenish what the rat race has taken from you. The ideal is supposed to be a bubbly kettle of lively and mutually enhancing activity.
(ii) The emphasis is on “space and spice.” The home is not to be totally tranquil–it is supposed to provide some excitement. Yet, there is some isolation in that families are supposed to provide that which cannot possibly be provided by outside forces such as work or friends.
(iii) There is a mixing of the roles–the enlightened dad, Supermom.
(iv) The anti-family imagery emerges: family as a vehicle of bondage, repression.
2. Tries to de-bunk the theory that the American family is deteriorating. It is merely evolving.
3. Emphasizes that lack of consistent family policy across the individual states of the Union. Babb emphasizes the need for consistent family policy to address the concerns of family law.
C. Constance Sorrentino, The Changing Family in International Perspective (pages 110-18)
1. Emphasizes the amount of family leave provided in other industrialized nations. For example, Sweden provides 18 months. In America, there was no uniformity under the Family Medical Leave Act, which still has a lot of loopholes.
2. Family leave legislative that is comprehensive in nature would make children a priority.
3. The American family
a. Smaller size
b. Fertility and mortality rates are both down
c. Marriage rates are interesting–3:5 end in divorce,
ernity.
D. The statute emphasizes that the individuals be doing their own cooking and cleaning as a separate housekeeping unit. Staffers did this work.
e. CLASS DISCUSSION
(i) Note
A. This is a zoning, not a “family law” case.
B. The court here applies an objective standard–unless the trial court arbitrarily or capriciously applied this definition, we well upheld.
C. There is an explicit definition of family, centered on the nuclear model.
3. Hann v. Housing Authority of the City of Easton (934-36)
Long-time couple treated as family
a. FACTS
(i) A couple of 11 years was denied low-income housing based on the fact that they lived together but were not married.
(ii) Had three children together.
(iii) Denied housing under the following, albeit ambiguous, definition of family: “Two or more persons living in a dwelling that are related by blood, marriage, or adoption.” Congress had attempted to widen the definition but it was defeated out of fear that such a broad definition would permit low income housing for gay couples.
b. ISSUE: Whether an unmarried couple with three children constituted a family so as to qualify for low-income housing.
c. RULE–Family is broader than the traditional nuclear model, especially in this context.
