History of Family Court
By Effie Belou

Although the precursor of family court was really child or juvenile court, the framers of family court probably could not have fathomed it would become a tribunal for every family related dispute as it exists today.

The concept actually arose in the late nineteenth century when the first separate juvenile court was established in Chicago.  Massachusetts, Rhode Island and Indiana, under the auspices of the "common law doctrine" also established a separate court to try children.  It is here where the seeds of parens patriae, or protection for children against themselves or their parents began. With the common law system, the law is made not by legislators but by the courts and the judges.  It is often referred to as the "unwritten law."  In substance, common law lies in the published court decisions.  This offered judges within this system wide discretion to shape family law.

By the 1960s, Family Court became firmly established and as Justice Potter Stewart stated in Parham v. J.R. (1979) "issues involving the family are the most difficult that the courts have to face." Hence, it is no surprise that family law cases are some of the most disputable.  Family cases actually placed state and federal regulations against disputes brought by fathers, mothers, husbands, wives and children.  Consequently, some intricate legal doctrines have arisen trying to define the responsibilities of the family.  Ironically, these same doctrines have been controversial and given way to deep disagreements.

Under nineteenth century federalism, the states had primary responsibility for family laws, including marriage, divorce, childrearing and inheritance.  For example, in Maynard v. Hill  125 US. 190, (1888), the Supreme Court stated that the state had jurisdiction over the family endorsing state regulation of the family.

In the 20th century, states continued to control the structure of family life by releasing national family law standards universally applied from state to state.  The first federal judicial involvement began under the guise of parental rights in Myer v. Nebraska, 262 US.390, (1923) which affirmed the right of parents to choose a curriculum.  This was further affirmed when  Pierce v. Society of Sisters 268 US. 510, (1925).  The Supreme Court upheld the right of a parent to direct his or her child's education endorsing parental authority as absolute and constitutionally protected in choosing which school was appropriate for their child.  Prince v. Mass, 321 US. 158, (1944) broadened this ruling by declaring that family life could not be disturbed by intervention of the state without substantial justification.  The Supreme Court granted autonomy from state regulations by liberties granted under the Fourteenth Amendment.

Family issues became more complex as the courts liberalized laws governing sex and contraception.  Of course, the most noted being Roe v. Wade, 410 US. 113.  Although originally filed in Texas District Court, the Supreme Court decriminalized abortion which brought about significant change, including the establishment of birth control clinics and the encouragement of unwed mothers to finish their education as opposed to the prior course of expelling them.  Thirty years later, in Stachokus v. Meyers, PA, Court of Common Please showed how the same rights that Roe claimed via the first, fifth, ninth and fourteenth Amendments still prevailed.  Stachkous impregnated Myers.  Their relationship ended and ten weeks into her pregnancy, she wished to terminate it.  Mr. Stachokus who did not want the pregnancy terminated was granted a temporary injunction against Ms. Meyers aborting the pregnancy.  The injunction was quickly withdrawn and Ms. Meyers was granted relief to obtain an abortion.  Increased divorce, women entering the workforce, the right to use birth control and abortion was now influencing decisions.  Further, alternative family arrangements through homosexuality, surrogacy and foster homes further complicated family courts.  By the 1960s, the family fell under more court scrutiny and spurred the creation of more extensive family law.

Other issues came to light when Loving v. Virginia, 388 US. 1, (1967) involved an interracial couple that got married in D.C., under D.C., marital laws who then moved back to Virginia.  They were held accountable for violating Virginia's interracial marriage ban.  Still, more issues came to light with the introduction of no fault divorce in the 70s.  Laws in almost every state now changed so that divorce could be obtained without having to find adultery as grounds.  It also began an equal division of assets.  The tender years doctrine was abandoned and the current trend is for courts not to show deference to mothers in custody disputes.  In 1979, William Orr v. Lillian Orr, 440 U.S. 278 involved a divorce father who filed a motion to challenge the Alabama spousal support statutes.  Orr's argument claimed that the statutes were unconstitutional and had a propensity towards sexual discrimination.  This argument was rejected.

In re Gault, 387 US 1 (1967) expanded the right of juveniles in the court setting with due process and right to counsel incorporating many, but not all of the rights of adult criminals under the Fourteenth Amendment.  Also, illegitimate children were given rights to their biological parent's estates. While Stanley v. Illinois, 405 U.S. 645 (1982) opened the doors for unwed fathers to have a legal standing to assume custody of the children, it shut the door on a biological father's right in Michael H. et. Al, v. Gerald D. No. 87-746 491, US 110, 109.  It charged that even though a child resulted out of an extra-marital affair between the plaintiff and a married woman, the plaintiff had no legal standing to seek custody of the child.  This decision actually rested on Roman law which grants a child born to a married woman, living with her husband as presumed to be the child of the marriage.

However, one controversial case that was not reviewed was that of Morgan Wise v. Wanda F. Wise where two years after their divorce, it was realized via a DNA test that he was not the biological father of a son afflicted with Cystic Fibrosis.  This led to the discovery that he was also not the father of two other boys but only the eldest daughter of the marriage.  When he addressed the Family Court to modify and annul his obligation for child support, the court refused, citing again the old Roman law standard that Morgan Wise was the de facto father.  This same standard did not prevail In the Matter of Baby M. 109 NJ, 396 (1988).  The matter involved a surrogate mother who agreed to be inseminated with Mr. Stern's  (the biological father) sperm and upon the birth of the baby and payment of $10,000 to relinquish all parental rights allowing Mrs. Stern to adopt the child and baby M to become part of the Stern family.  However, even though Mr. Stern was married and the child was conceived while still married, because the act of Mrs. Stern having to adopt the child it violated New Jersey Adoption guidelines.  New Jersey adoption law clearly states that the only way for a biological mother or either parent for that matter to lose custody is to prove the other unfit.  Hence, Baby M., is shared by both the Gould Family and the Stern family.  This Family Law doctrine became even more ambiguous in Alison D., versus Virginia M., 77 NY 2d 651 (1991) when a woman sues ex-lesbian companion for visitation rights to the child that they agreed to have and raise.  Eventually the relationship ended and Alison moves out of the family home and Virginia bought out her half of the mortgage.  However, the court could not justify how Alison could bring a writ of habeas corpus to a child she had no biological tie to if the mother was fit.  It begins to look like the court favors de facto parents of different sexes.

Ironically, forty years later, Family Court while affording the notion of individualism has intervened even further into mediating disputes within the family court.  Enforcing parental rights over grandparent rights in Troxille v. Granville (99-138), 530 US 57 (2000). Another seeming paradox is in DeShaney v. Winnebago Department of Social Services when her four year old son was left profoundly retarded by repeated beatings of his father, even though social services was aware of the beatings from complaints placed from the father's former girlfriend and the boy's mother.  The court found that nothing in the language of due process clause requires the state to protect the life, liberty and property of its citizens against private actors.  Again, we come to another case, which seems to contradict this ruling.  In Raucci v. Town of Rotterdam, 902 F.2d, 1050 (1990), Mrs. Raucci was receiving threats to her life from her ex-husband.  Although at least 10 calls were placed to the local police department, they were largely ignored.  The boy's father ended up killing him and wounding the mother when he shot them when they were sitting in their car.  Mrs. Raucci was allowed to sue the police for damages.

Termination of parental rights, enactment of child support standards, parental kidnapping charges over the court's inability to allow the child, whom they gave due process rights to in Parham v. J. R., to voice in being abused by another parent.  This we have seen with the Nathan Greico tragedy and with Alana Krause who claims her father had her committed in order to keep her quiet and is currently seeking justice.  With Clinton's fatherhood initiative sanctioned in 1995, he stated that every area of social study should include fathers.  This has also been seen in family courts venues as more custody disputes being challenged.  Family court's venue only can become more complicated as families struggle.  Judges still retain wide discretion.  Due process rights have drawn more attention since parents can be accused of felony child neglect or abuse but not afforded a jury trial.  Ex parte hearings can be held and clear and convincing evidence is used in place of beyond a reasonable doubt.  Finally, hearsay is allowed during hearings in Family Court.

In the last two decades, the family dysfunction continues to present itself before the Family Court.  Social Science's rapid growth continues to be a main influence into family doctrine standards.  In the last two decades, family problems have fed the self-interested for profit industries of psychologists, psychiatrists, expert witness, social workers, doctors and all other industries who see the family dysfunction as a boon market for profit.

Presently, the court holds the power to make and shape the law through "unwritten" law, adjudicate any violations of the law they shape and finally, penalize the offenders of these laws.  It is no wonder that many families feel violated and raped of justice and due process rights by the control and decisions made by Family Court judges.  In divorce and custody cases, the open end system of Family Court can place a family at the hands of family court indefinitely whenever one party decides to motion for change of support, custody or visitation.  It will be inevitable that the continued hold and lack of a watchdog upon the Family Court System decries change.


Rubington & Weinberg, The Study of  Social Problems, 2003. Oxford University Press

Hall, K. L., Oxford Companion to the Supreme Court, 1992