Challenge and Response in Family Law

The invitation to write for this symposium on Stability and Change Through Law a short article about challenges and responses in the field of family law has been a challenge. I accepted it hesitatingly. The time limit allowed was too short to permit investigation or elaboration. However, it has given me an opportunity to express some judgments I have come to form in some thirty years of occupation with family law.

With one exception all these judgments are based on general impression rather than systematic incisive research. A topic on which extensive research has been undertaken is that of divorce; the result will, I hope, be published in the near future. What we need in the family field is research. Before we can begin sensibly to reform the present law we must know what the needs are.

That means we must know what are the actual patterns of behavior of all the numerous and different groups of our heterogeneous nation; we must know what normative ideas are actually maintained by these groups of our people. Only then can we know what the needs are which the law is supposed to satisfy. Next we must know what the present law is. That knowledge is by no means clear.

Several fields of family law are in such a state of confusion that it is hardly possible to state with certainty what the law is. We have already pointed out the confused state of the law of guardianship and of infants' contracts. The state of clarity is hardly better as to the law of nullity and annulment of marriages, of alimony, or of child support, just to name a few examples. What we need in family law is research--research on the law, on the facts of family life, on the normative ideas actually entertained, and on the law itself.

If the present sketch should stimulate some such research, it will have served its purpose.