Family Law in America

Vol. 14 No. 6 (June 2004), pp.396-397

FAMILY LAW IN AMERICA, by Sanford N. Katz. New York: Oxford University Press, 2004. 288pp. Cloth $55.00. £35.00 ISBN: 0-19-926434-1.

Reviewed by Patricia McGee Crotty, Department of Political Science, East Stroudsburg University. Email: pcrotty@po-box.esu.edu

In this brief text, Sanford Katz examines the legal relationships that exist within the family. Professor Katz is uniquely suited to this task because of his education, his teaching experience, his publications, and his work drafting model legislation for the federal government.

FAMILY LAW IN AMERICA describes how social reality has affected the family through examining the tensions that exist between traditional and non-traditional definitions of the family, between the interests of the individual and of the family, between family privacy and government regulations, between state and national interests, and between legislative and judicial control of family law. The overarching goal of the text is to explain how informal factors have influenced many of the recent changes that have occurred in the practice of family law.

The first chapter’s focus is marriage-like relationships, covering such issues as pre-nuptial agreements, domestic partnerships, civil unions, and palimony. Katz also examines criticisms of these arrangements by groups as diverse as feminists and religious fundamentalists. Throughout the text, his discussions generally favor the changes in family law that result from new living arrangements. This includes the legal recognition of same sex unions. Although published before Massachusetts began issuing marriage licenses to same sex couples, this book offers an extensive discussion of the legal challenges faced by homosexuals who wish to marry.

Marriage – in its traditional and non-traditional forms – provides material for the second chapter. Katz’s analysis makes it very clear that the marriage contract includes three parties, a man, a woman, and the state and that the state is the most important partner, playing an extensive role in defining, licensing, and ending personal unions. One important issue in this chapter that deserves a more extensive treatment is state laws on inter-spousal immunity. A detailed analysis would clarify the options various states offer to married couples about testifying in court especially when the case involves family conflict. One suggestion for a future edition is to provide a chart that compares the policy of different states in this area as well as in other areas of family law. Because of the importance of domestic violence, it would also help if Katz had devoted more space to reviewing recent research by political scientists, sociologists, and feminists who have studied the effects that sentencing options for perpetrators of violence have on the safety of other family members.

The third chapter on divorce illustrates how innovations—like no fault divorce, alternative dispute resolution, and family [*397] courts—represent attempts to make the process less adversarial. Unfortunately, these options also make divorce less public. Future studies of procedural reforms should determine whether such innovations place the economically vulnerable partner at a greater disadvantage than do traditional practices. This chapter highlights the trend to “federalize” family law in its discussions of parental relocation and kidnapping. The need for uniformity in state laws is also addressed in an Appendix, which includes model laws in six different areas of domestic relations that the National Conference of Commissioners on Uniform State Laws has drafted.

The federalization theme continues in Chapter Four’s discussion of how conditions of aid attached to federal grants affect state practices in the area of child protection. This section of the text clearly reveals the author’s concern for the safety of children. According to Katz, states have a compelling interest in protecting children. Thus, there needs to be extensive reporting requirements regarding child abuse. He believes that mandated reporters should include members of the clergy and illustrates this point in his discussion of the sexual abuse scandals in the Roman Catholic Church. For readers without a legal background, Katz could be clearer in elucidating the criteria federal courts use in deciding Section 1983 suits against state and local agencies that fail to protect children and, in some instances, women from abuse in the home.

In the final chapter on adoption, Katz successfully explains the legal distinctions that separate baby selling from adoption and surrogacy. His discussion of surrogacy includes legal criteria generally used to determine parenthood, as well as the implications that new reproductive technologies have for women – especially poor women. This is another example of the major strength of this text, its examination of new social practices and how they influence the law.

Katz bridges the gap between legal theory and practice and also examines how social realities have produced new legal guidelines. However, by omitting a concluding chapter, he misses the opportunity to summarize the challenges faced by contemporary family law in light of changing living arrangements and to review the impacts on family law caused by tensions between the individual and the family, between the state and the family, and between state legislatures and courts.

In spite of this omission, FAMILY LAW IN AMERICAN is a clear, concise, and detailed summary of modern developments in family law that combines legal analysis with social science research. Practitioners and social scientists will find this work a valuable supplement to the technical approach taken by most legal textbooks. I only hope Professor Katz intends to offer an expanded version of this work in the near future.

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