Expanding Nonmarital Relationships

• Published date: 01 October 2020
• Author: Albertina Antognini,Naomi R. Cahn,Kaiponanea T. Matsumura
• DOI: http://doi.org/10.1111/fcre.12530
• Date: 01 October 2020

SPECIAL FEATURE: NONMARRIAGE

EXPANDING NONMARITAL RELATIONSHIPS

Albertina Antognini, Naomi R. Cahn, and Kaiponanea T. Matsumura

As nonmarital relationships become more common, courts and couples increasingly confront the

ways in which legal marriage defines or affects other familial relationships. Legal and law reform

responses to these relationships vary, but have generally lagged behind the pace of social change.

i

Despite the fact that people enter into nonmarital relatio nships for a variety of reasons, and structure

their relationships in different ways, the law continues to use marriage as the defining category, even

when marriage is legally irrelevant to the issues at hand.

ii

That may be because marriage carries a

well-developed set of social meanings that have evolved over centuries,

iii

whereas nonmarital rela-

tionships have not yet been institutionalized in the United States and thus lack a defining set of

social norms to guide and reinforce partners’behavior.

iv

Courts, scholars, the American Law Institute and the Uniform Law Commission, have been

exploring these definitional problems. Additionally, we have now institutionalized a Nonmarriage

Roundtable. The second Nonmarriage Roundtable was held in February 2020, at the University of

Arizona James E. Rogers College of Law. It brought together approximately 25 scholars (most were

legal academics, although Amanda Jayne Miller, a sociologist, was one of the Roundtable orga-

nizers) to engage with multiple aspects of nonmarital relat ionships, as well as with each other.

This issue of Family Court Review includes two articles of the many presented and discussed

during the Roundtable. The articles showcase some of the diversity of the issues that were dis-

cussed. One article focuses on the relationship between marital status, parents, and children, and the

other focuses on how best to classify the relationship between adults who do not civilly marry. Both

also address the role of the state in policing boundaries between marriage and nonmarriage.

In “Marriage as Gatekeeper: The Misguided Reliance on Marital Status Criteria to Determine

Third-Party Standing,”Professor Barbara Atwood addresses the question of how the parents’mari-

tal status affects the outcome of disputes over third-party or nonparent contact with a child. As the

article notes, many states use the parents’marriage as a way to limit the rights of third parties to

visitation. The basis for this marital status criteria is the belief that protection of marital families is

the way to protect parental liberty and autonomy. Yet when marriages end through divorce or death,

or when the parents are not mar ried, states examine how children can benefit from relationships

with other close adults. Atwood argues that marital-status criteria operate without regard to the third

party’s actual relationship to the child, but instead focus on the parents’relationship. Consequently,

when a child’s parents are married, a third party with a compelling claim for custody or visitation

may not have standing. But if the parents are unmarried or a parent has died, then that same third

party might have standing. The article explores developing law in this area, pointing out that a few

state courts have found marital status criteria unconstitutional. Further, both the Uniform Law

Commission’s Uniform Nonparent Custody and Visitation Act and the third-party contact provi-

sions in the American Law Institute’s draft Restatement of Children and the Lawreject marital status

Corresponding: antognini@arizona.edu

FAMILY COURT REVIEW, Vol. 58 No. 4, October 2020 968–970, doi: 10.1111/fcre.12530

© 2020 Association of Family and Conciliation Courts