Family Law Is Constitutional Law in Everyday Life

face of a prisoner

Intense personal relations are a difficult field for law. Writing with the benefit of extensive judicial experience addressing domestic violence, a judge observed in 1995:

It is apparent that the attitudes of law enforcement officers, prosecutors, judges, and treatment counselors are evolving toward the belief that the court system must treat violence toward loved ones occurring behind closed doors in the same manner that it treats violence toward strangers occurring on the streets.^

A law professor writing in a leading law journal has similarly warned against categorizing an “intimate sphere” in law.^ On the other hand, a leading state court judge has declared:

Without question, the relationship between the perpetrator and victim makes domestic violence different from prototypical “stranger” crimes.^

Domestic violence statutory law defines a separate sphere of criminal law and criminal procedure for allegations of interpersonal violence within statutorily defined relations of love, romance, and sex. What is the legal justification for equal treatment, or different treatment?

Domestic violence law’s particular concern with intimate relations doesn’t have a clear substantive basis. Romance and sex occurs among persons who know each other in some cases for just a few hours. In other cases, intimates know each other for a whole life. Sex usually occurs behind closed doors, as do many other activities. Sex often doesn’t involve sharing a home, sharing economic assets, and sharing care for children. Dating relationships and relationships of shared home and children are conflated within domestic violence statutes. Those relationship categories differ as do an arms-length transaction and a joint proprietorship. The latter pair implies much different legal codes.

Law defined within a category of personal relationships (family law or domestic relations law) has received too little attention from legal scholars with diverse backgrounds and interests. In law schools, family law appears to be a low-prestige field that narrowly interested female professors dominate. One might think that the explanation for this outcome is obvious:

What sphere of ordinary life does our law regulate the least?^

With respect to lives of men, military service has probably been the sphere of ordinary life that “our law” (the law that citizens make through the regular process of self-government) has regulated the least. But a different answer tends to justify the legal academy’s prestige hierarchy and sexual division of labor:

The answer … is probably families. The law of domestic relations regulates a great many transactions, but it says little about the ordinary interactions between spouses, parents and children, or siblings. Consequently, that law is a small presence in daily life. ^

That measure of law’s presence ignores the constitutional significance of the law of domestic relations. What if I had better opportunities for sharing a bed and hearth with someone, or worse opportunities? What if I had more children, or none? What if I had a father at home? Family law, meaning law governing intense personal relationships, has great personal and social significance. Family law is constitutional law for the human relations of everyday life.

Revising the above text to refer to “intact families” doesn’t save the claim that family law has relatively little importance. The last sentence in the above text was published in a revised form:

At least for intact families, that law {family law} is a small presence in daily life.^

While this revision at least hints at realities of ordinary life, it misleadingly suggests that relational brokenness is abnormal and unrelated to the law that governs family life. Ordinary family life exists in the shadow of possibilities for disruption. “Intact families,” however that concept might be defined, do not exist in a realm isolated from family law.

A large number of statutes across the U.S. address fears of harm, threats and attempts to do harm, and incidents of harm specifically within relationships commonly associated with love, lost love, and hopes of love. The relationship categories of statutory concern include spouses, ex-spouses, cohabitants, parents of the same child, persons who have been sexually intimate, and dating relationships. The statutory definitions of dating relationships highlight the importance of love:

  • dating relationship…a romantic, courtship, or engagement relationship, often but not necessarily characterized by actions of an intimate or sexual nature {Hawaii Revised Statutes §586-1(2) (2003)}
  • dating relationship means frequent intimate associations primarily characterized by the expectation of affectional involvement {Michigan Comp. Laws §600.2950(30)(a)(2004)}
  • dating relationship means frequent, intimate associations primarily characterized by the expectation of affectional or sexual involvement, but does not include a casual relationship or an ordinary association between persons in a business or social context {Nebraska Revised Statutes §42-903 (2004)}

A Kansas statute on protection from abuse declares that a dating relationship is a “social relationship of a romantic nature.” The statute also declares that such a relationship will be presumed to exist if one party states that it exists.^ In Missouri and Texas, such statutes have developed through an active, ongoing process of legislative amendment.^ ^ Love relations, rather that material and biological relations, are the primary focus of protective statutes.^ Special protective statutes much less frequently address relations of kinship or relations defined in terms of sharing a high percentage of economic assets. Statutory emphasis on love relations is consistent with democratic law-making through sensational press coverage of intimate violence.

Change in domestic violence law has contributed significantly to the rise of mass incarceration in the U.S. In the U.S., adults arrested for domestic violence account for a majority of adults arrested for any form of interpersonal violence. Arrests for domestic violence have driven the increase in arrests for interpersonal violence from 1980 to 2011. Crime is a potent tool for attracting mass-media attention. Domestic violence, even more so. Action against domestic violence has largely been an uncritically celebrated front in the war on crime.^

In truth, the scope and legal difference of personal relations is a dilemma. Insightful institutional analysis has recognized “the great advantages, in the home setting, of informally associating with a few trustworthy intimates.”^ Law tends to undermine the informality and trust important in intense personal relationships. Yet material, biological, and sexual relations also increase vulnerability to harm from betrayal, fraud, and violence. Personal stakes in family law are high. Possibilities for highly discretionary and discriminatory legal judgments are also high. Like constitutional law, family law becomes less meaningful as it becomes broader, more detailed, and more complex. The practice of family law is a fundamental public test of interpersonal trust and rule of law. A legal aphorism is that there is no law in family law.^ If that’s true, then there is no law in the most important sphere of most persons’ lives.

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