Family Law
Barbara Glesner Fines
1-511 Holmes
235-2380
Why Family Law?
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Fundamental understanding of law
 Bar preparation generally and
specifically
 Preparation for practice
 Foundation for further study
What will we learn?
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Doctrine
Themes
Skills
Substantive Doctrine
Defining Family
Regulating Family
Reorganizing Family
Themes in family law
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Public v. private
ordering – Should
the government
regulate family?
When? Why?
How?
Is the law a good
tool for regulating
family?
Who should
decide?
Who should decide?
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Government? Which one?
Family? Which one?
HOW do we decide who
should decide?
What Standards?
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Moral?
Social?
Economic?
Psychological?
Legal?
Personal?
What is a Family?
How do we label families?
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“Nuclear Family”
Single-parent (never-married, divorced,
widowed)
Blended (Steps and Halves)
Adoptive
Foster
Extended
Non-traditional
Census definition
“Two or more persons, living in
the same household, and related
by blood, marriage or adoption.”
Census:
Families & Non-Families
Non-family
Family
Family Compositions
Other
Solo
Other
family
Married
w/ kids
Married
no kids
What is the Law’s Definition
of “Family”?
• It Depends:
The legal definition
of “family”, like the body of family
law itself, is not a unitary concept
derived from a single area of
legislation or a single branch of case
law
What purposes are served
by a legal definition of
family?
A legal definition of family:
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Regulates responsibilities and authority
between individuals.
 Regulates access to important social
benefits.
 May confer psychological and social
consequences also.
What Constitutional
Considerations are
Implicated by a Legal
Definition of Family?
Characterizing the personal
interest affected
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“Fundamental interests” or interests
affecting “protected classes” require
"strict scrutiny"
If not a fundamental interest or
protected class, use the "rational basis"
test
Describe the “fundamental
interest” the court was
protecting in Moore v. City
of East Cleveland.
How might the law define
“family”?
Formalism v. Functionalism
Formalistic Definitions
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Defines family relationships
according to the model of the
traditional nuclear family.
Recognizes only individuals related to
each other by the bonds of blood,
adoption, or marriage.
Advantages & Disadvantages
of Formalism
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Favors the traditional “nuclear”
family over all others
Clear, predictable standard
But, may be both over-inclusive and
under-inclusive.
Functional Definition of
Family
Asks whether a relationship shares
the essential characteristics of a
traditionally accepted relationship
and fulfills the same human needs.
Functional characteristics
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1. the exclusivity and longevity of the
relationship,
2. the level of emotional and financial
commitment,
3. the manner in which the parties have
conducted their everyday lives
4. held themselves out to society,
5. reliance placed upon one another for
daily family services.
Reasons for Shift to a
Functional Approach
Reflects change in societal
makeup
Reflects changes in gender role
May better serve statutory
purposes
Costs of Functional
Approach
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Indeterminant
Intrusive
Inappropriate
Interviewing Exercise
Active Listening
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truly wish to learn,
keep focused on them (not yourself)
verify content
verify (non-judgmentally) emotions.
Next Class
Constitutional Framework:
Read 95-134; 839-870 (Zablocki,
Goodridge & Lawrence)
Skim Text pp. 134-48
Mo. Rev. Stat. 451.090; 451.020;
451.030 and 451.022
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