THE CHANGING FAMILY—IMPLICATIONS FOR THE LAW.*

• DOI: http://doi.org/10.1111/j.174-1617.1981.tb00060.x
• Date: 01 December 1981
• Published date: 01 December 1981
• Author: Jay Folberg

THE CHANGING FAMILY-IMPLICATIONS FOR

THE

LAW.*

Jay Folberg""

Last

night

we had the considerable benefit

of hearing from Or. Arthur Norton about the

demographic trends suggested by the census

data and what

it

says about the family. Family

law has not always kept pace

with

sociological

and demographic developments. Particularly

the non-lawyers

in

this interdisciplinary audi-

ence may ask why that is

so.

Law is more reac-

tive

than

proactive. Law serves as an anchor to

the

past and the institutionalization of tradition.

We pick

up

the anchor and move

it

forward

cautiously

so

as not to have to change our legal

traditions

with

every shifting wave

of

new

thought or momentary fancy. Another stabiliz-

ing

factor is that law takes a macro view,

as compared

with

the therapists' micro-indivi-

dualistic view, and regards law as a model or

rule

of

acceptable,

if

not

idealized, behavior.

Though this approach sounds quite noble,

perhaps we have actually approached family law

like we grow mushrooms

in

Oregon: keep

it

in

the dark and throw

in

lots of manure.

The law is coming out of the dark and mov-

ing its anchor forward

in

several discernable

trends. Many of these trends have been started

in

California, to which the rest of the country

has looked as an innovative pace setter. Though

the trends are

in

many ways interrelated, lets

consider them separately.

The first trend

might

be labeled:

1.

The

Death

Of

Provincialism

Family law has traditionally been rather

in-

sular and provincial. Each state had a different

approach to grounds for divorce, questions of

evidence, approaches to custody, division of

'Portions of this paper were presented at the Fourth Annual

Family Law Colloquium, co-sponsored by the Los Angeles

County Superior Court, Los Angeles County Bar

Ass'n.-Family Law Section, and the Ass'n of Family Con-

ciliation Courts-California Chapter

.

.

.

November

6,

7,

81

8th, 1980, Biltrnore Hotel,

Los

Angeles.

"Professor Jay Folberg, Professor

of

Law, Lewis and Clark

Law

School, Portland, Oregon, former President, Oregon

State

Bar

Ass'n-Family Law Section.

property and support. The case law and statutes

of each state are undergoing rapid change as

they confront profound, but no longer isolated,

issues. Significant decisions of the U.S. Su-

preme Court on family law issues have been

handed down each of the last several terms and

more are docketed for argument. Each of these

constitutional decisions commonly impact on all

states. Uniform acts affecting family law such

as

the

Uniform Child Custody Jurisdiction Act,

Uniform Marriage and Divorce Act, the Uniform

Reciprocal Enforcement of Support Act, the Uni-

form Parentage Act and the Uniform Act on

Blood Test are gaining increasing acceptance

throughout the land. Federal tax policies and

welfare support policies are having a pervasive

effect nation wide.

Trial and appellant courts are increasingly

looking to decisions of other states as they tackle

similar new issues

in

a context of changed socio-

logical conditions. State legislatures are starting

to respond

in

mass to demands by their constitu-

ents that the states address the realities of their

lives rather than the fictions of the nuclear, sole

breadwinner, parental, forever family. Those

courts and state legislatures are turning with

increasing frequency to California as

a

bell-

weather

of

change and a model of law reform.

The Marvin case, for example, has been re-

played

in

more states than Lee Marvin's film

"Ship of Fools." The rest of the country watches

with

great interest what you do here

in

Califor-

nia. One important reason for the death of

pro-

vincialism is, as

I

assume will be revealed by

the census, the mobility of families and individu-

als moving from state to state. We might separa-

tely label this trend:

2.

Divorce

as

a

Transitory

Cause

of

Action

A

critical reexamination of the basis of

di-

vorce jurisdiction reveals that the present rules

are founded on out moded notions of state

power over individuals, a failure to recognize

that no-fault divorce of one form or another is

now almost universal, a misperception of the

extent of variation between different state ap-

1

CONCILIATION

COURTS

REVIEW/VOLUME

19,

NUMBER

Z/DECEMBER

1981